<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 19, 1995
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AIR PRODUCTS AND CHEMICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction
of incorporation or organization)
23-1274455
(I.R.S. Employer
Identification No.)
7201 HAMILTON BOULEVARD
ALLENTOWN, PENNSYLVANIA 18195-1501
(610) 481-4911
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
JAMES H. AGGER, ESQ.
Vice President, General Counsel and Secretary
AIR PRODUCTS AND CHEMICALS, INC.
7201 HAMILTON BOULEVARD
ALLENTOWN, PENNSYLVANIA 18195-1501
(610) 481-4911
(Name and address, including zip code, and telephone number, including area
code, of agent for service)
COPY TO:
D. COLLIER KIRKHAM, ESQ.
CRAVATH, SWAINE & MOORE
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
------------------------
<TABLE>
<CAPTION> CALCULATION OF REGISTRATION FEE
======================================================================================================
Proposed
Proposed maximum
Title of each class Amount maximum aggregate Amount of
of securities to be offering price offering registration
to be registered registered(1) per unit(2) price(2) fee(2)
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities ................ $400,000,000 100% $400,000,000 $137,931
======================================================================================================
</TABLE>
(1) Any offering of Debt Securities denominated in any foreign currencies or
foreign currency units will be treated as the equivalent in U.S. dollars
based on the exchange rate applicable to the purchase of such Debt
Securities of the Registrant.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor
shall there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JANUARY 19, 1995
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED JANUARY , 1995)
$400,000,000
AIR PRODUCTS AND CHEMICALS, INC.
MEDIUM-TERM NOTES, SERIES D
DUE FROM 9 MONTHS TO 20 YEARS FROM DATE OF ISSUE
------------------------
Air Products and Chemicals, Inc. (the "Company"), may offer from time to
time up to $400,000,000 aggregate principal amount or its equivalent in foreign
currencies or currency units of its Medium-Term Notes, Series D, Due from 9
Months to 20 Years from Date of Issue (the "Notes"). Each Note will mature on a
Business Day (as defined herein) from 9 months to 20 years from the date of
issue, as selected by the initial purchaser and agreed to by the Company. The
Notes being offered hereby may be denominated in U.S. dollars or in such foreign
currencies or currency units (the "Specified Currency") as may be designated by
the Company in a pricing supplement (the "Pricing Supplement") to this
Prospectus Supplement at the time of the offering. See "Foreign Currency and
Other Risks."
The Notes may be issued as Fixed Rate Notes, which will bear interest at a
fixed rate (which may be zero in the case of certain Notes issued at a price
representing a discount from the principal amount payable at maturity), or as
Floating Rate Notes, which will bear interest at a rate or rates determined by
reference to a Base Rate, as adusted by the Spread or Spread Multiplier, if any,
each as set forth in the applicable Pricing Supplement, or as Currency Indexed
Notes, the principal amount of which payable at maturity or upon earlier
redemption or repayment, and/or the interest payable on each interest payment
date and at maturity, is determined by the difference in the rate of exchange
between the Specified Currency and another currency or currency unit on certain
specified dates, or as Commodity Indexed Notes, the principal amount of which
payable at maturity or upon earlier redemption or repayment, and/or the interest
payable on each interest payment date and at maturity, is determined by the
difference in the price of a specified commodity on certain specified dates. See
"Description of Notes."
Each Note will be issued in fully registered form and will be represented by
either a global certificate (a "Book-Entry Note") registered in the name of a
nominee of The Depository Trust Company ("DTC") or another depositary (DTC or
such other depositary as is specified in the applicable Pricing Supplement is
herein referred to as the "Depositary"), or a certificate issued in definitive
form (a "Certificated Note"), as set forth in the applicable Pricing Supplement.
Interests in Book-Entry Notes will be shown on, and transfers thereof will be
effected only through, records maintained by the Depositary and its
participants. See "Description of Notes -- Book-Entry System." The Notes will be
issued in denominations of $100,000 and any larger amount that is an integral
multiple of $1,000 or, in the case of Notes denominated in a Specified Currency
other than U.S. dollars, in the denominations set forth in the applicable
Pricing Supplement.
The interest rate or interest rate formula, issue price, Specified Currency,
stated maturity and redemption and repayment provisions, if any, for each Note,
whether such Note is a Fixed Rate Note or a Floating Rate Note, whether such
Note is a Currency Indexed Note or Commodity Indexed Note and whether such Note
is a Book-Entry Note or a Certificated Note will be established by the Company
at the date of issuance of such Note and will be set forth in the applicable
Pricing Supplement to this Prospectus Supplement. Interest rates and interest
rate formulae are subject to change by the Company, but no such change will
affect the interest rate on, or interest rate formula for, any Note theretofore
issued or which the Company has agreed to sell. See "Description of Notes."
Unless otherwise indicated in the applicable Pricing Supplement, interest on
Fixed Rate Notes will be payable on each June 15 and December 15 and at
maturity. Interest on Floating Rate Notes will be payable on the dates indicated
herein and in the applicable Pricing Supplement. See "Description of
Notes -- Interest Rates."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS SUPPLEMENT, ANY PRICING SUPPLEMENT HERETO
OR THE PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
==========================================================================================================
PRICE TO AGENTS' PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) COMPANY(2)(3)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Note.................................... 100% .125% - .625% 99.375% - 99.875%
- ----------------------------------------------------------------------------------------------------------
$ 500,000 - $399,500,000 -
Total (4)................................... $400,000,000 $2,500,000 $397,500,000
==========================================================================================================
</TABLE>
(1) Unless otherwise indicated in the Pricing Supplement relating thereto, each
Note will be issued at 100% of its principal amount.
(2) The Company will pay a commission to Lehman Brothers, Lehman Brothers Inc.
(including its affiliate Lehman Government Securities Inc.) and Goldman,
Sachs & Co. (each an Agent and collectively the "Agents"), in the form of a
discount, ranging from .125% to .625% of the principal amount of a Note,
depending upon its maturity, sold through such Agent. Any Agent, acting as
principal, may also purchase Notes at a discount for resale to one or more
investors or one or more broker-dealers (acting as principal for purposes of
resale) at varying prices related to prevailing market prices at the time of
resale, as determined by such Agent, or, if so agreed, at a fixed public
offering price. Unless otherwise specified in the applicable Pricing
Supplement, any Note sold to an Agent as principal will be purchased by such
Agent at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Note of
identical maturity. The Company has agreed to indemnify each Agent against
certain liabilities, including liabilities under the Securities Act of 1933,
as amended. In the case of Notes sold directly to purchasers by the Company,
no commission will be paid.
(3) Before deducting expenses payable by the Company estimated at $300,000.
(4) Or the equivalent thereof in other currencies or currency units.
------------------------
The Notes are being offered on a continuous basis by the Company through the
Agents, each of which has agreed to use its reasonable best efforts to solicit
purchases of the Notes. The Company may sell Notes to any Agent, as principal,
for resale to one or more investors or to one or more broker-dealers (acting as
principal for purposes of resale) at varying prices related to prevailing market
prices at the time of resale, as determined by such Agent, or, if so agreed, at
a fixed public offering price. The Company reserves the right to sell Notes
directly to purchasers on its own behalf or to use additional agents to solicit
offers to purchase Notes. The Notes will not be listed on any securities
exchange, and there can be no assurance that the Notes will be sold or that
there will be a secondary market for the Notes. The Company reserves the right
to withdraw, cancel or modify the offer made hereby without notice. The Company
or the Agent that solicits any offer to purchase Notes may reject such offer in
whole or in part. See "Plan of Distribution."
------------------------
LEHMAN BROTHERS GOLDMAN, SACHS & CO.
January , 1995
<PAGE> 3
This Prospectus Supplement contains brief summaries of certain documents
incorporated by reference in the Prospectus. Such summaries are qualified in
their entirety by the detailed information contained in the incorporated
documents.
------------------------
DESCRIPTION OF NOTES
The following description of the particular terms of the Notes offered
hereby supplements, and to the extent inconsistent therewith replaces, the
description of the general terms of the Securities (as such term is used in the
accompanying Prospectus) under the heading "Description of Securities" in the
accompanying Prospectus, to which description reference is hereby made.
Capitalized terms not defined herein or in the Prospectus have the meanings
specified in the Indenture and/or the Notes.
GENERAL
The Notes constitute a single series for purposes of the Indenture and are
limited to an aggregate principal amount of $400,000,000 or its equivalent at
the time of issuance in foreign currencies or currency units. The foregoing
limit may be increased by the Company if in the future it determines that it may
wish to sell additional Notes. The Company may from time to time sell additional
series of Securities, including additional series of medium-term notes.
The Notes will be offered on a continuous basis, and each Note will mature
on a Business Day from nine months to twenty years from its date of issuance, as
selected by the initial purchaser and agreed to by the Company. Each Note will
be denominated in United States dollars ("$," "dollars" or "U.S. dollars") or
the Specified Currency, as specified in the applicable Pricing Supplement. Each
Note will bear interest at either (i) a fixed rate or (ii) a floating rate
determined by reference to the Commercial Paper Rate (as defined below), LIBOR,
the Treasury Rate (as defined below) or such other interest rate or formula (the
"Base Rate") specified in the applicable Pricing Supplement, which may be
adjusted by a Spread and/or a Spread Multiplier (each as defined below). Each
Floating Rate Note will mature on an Interest Payment Date (as defined below)
for such Note.
The Notes may be issued as Currency Indexed Notes, the principal amount of
which payable at maturity or upon earlier redemption or repayment, and/or the
interest payable on each Interest Payment Date and at the Maturity Date, will be
determined by the difference in the rate of exchange between the Specified
Currency and another currency or currency unit set forth in the applicable
Pricing Supplement on certain specified dates, or as Commodity Indexed Notes,
the principal amount of which payable at maturity or upon earlier redemption or
repayment, and/or the interest payable on each Interest Payment Date and at the
Maturity Date, will be determined by the difference in the price of a specified
commodity on certain specified dates. See "Currency Indexed Notes" and
"Commodity Indexed Notes."
Each Note will be issued initially as either a Book-Entry Note or a
Certificated Note in fully registered form without coupons. Except as set forth
under "Book-Entry System" below, Book-Entry Notes will not be issuable in
certificated form.
The Notes will be issued in denominations of $100,000 and any larger amount
that is an integral multiple of $1,000 for Notes denominated in U.S. dollars,
except as otherwise specified in the applicable Pricing Supplement, and for
Notes denominated in foreign currencies or currency units, the denominations
described below under "Special Provisions Relating to Multi-Currency Notes." The
Notes will constitute unsecured, unsubordinated indebtedness of the Company and
will rank pari passu with all other unsecured, unsubordinated indebtedness of
the Company.
S-2
<PAGE> 4
The Notes will not be subject to any sinking fund and will not be
redeemable at the option of the Company or repayable at the option of the
holders thereof prior to their stated maturity, except as may otherwise be
provided in the applicable Pricing Supplement. The Company may discharge its
indebtedness and its obligations or certain of its obligations under the
Indenture with respect to the Notes as described under "Description of
Securities -- Defeasance of the Indenture and Securities" in the accompanying
Prospectus.
The Pricing Supplement relating to a Note will describe the following
terms: (1) the Specified Currency of such Note; (2) if other than 100%, the
price (expressed as a percentage of the aggregate principal amount thereof) at
which such Note will be issued; (3) the date on which such Note will be issued;
(4) the date on which such Note will mature (the "Maturity Date"); (5) whether
such Note may be redeemed or repaid prior to maturity, and if so, the provisions
relating to such redemption or repayment; (6) whether such Note is a Fixed Rate
Note or a Floating Rate Note; (7) if such Note is a Fixed Rate Note, the rate
per annum at which such Note will bear interest; (8) if such Note is a Floating
Rate Note, the Base Rate, the Initial Interest Rate, the Interest Payment Dates,
the Reset Period, the Index Maturity, the Maximum Interest Rate and the Minimum
Interest Rate, if any, and the Spread or Spread Multiplier, if any (all as
defined herein), and any other terms relating to the particular method of
calculating the interest rate or rates for such Note; (9) whether such Note is a
Currency Indexed Note or a Commodity Indexed Note; (10) if such Note is a
Currency Indexed Note, the Specified Currency, the Indexed Currency, the Face
Amount, the Base Exchange Rate, the Base Interest Rate, if any, the
Determination Agent and the Reference Dealers (all as defined below) relating to
such Currency Indexed Note and certain other information relating to Currency
Indexed Notes; (11) if such Note is a Commodity Indexed Note, the methods for
determining the principal amount payable at maturity and/or the interest payable
on each Interest Payment Date and at maturity and other information relating to
Commodity Indexed Notes; (12) whether such Note will be issued initially as a
Book-Entry Note or a Certificated Note; and (13) any other terms of such Note
not inconsistent with the provisions of the Indenture.
Notes may be issued in the form of Discount Notes (as defined below under
"Certain U.S. Federal Income Tax Considerations -- U.S. Holders -- Original
Issue Discount"), including certain Notes offered at a discount from the
principal amount thereof due at the stated maturity of such Notes. There may or
may not be any periodic payments of interest on Discount Notes. In the event of
an acceleration of the maturity of any Discount Note, the amount payable to the
holder of such Discount Note upon such acceleration will be determined in
accordance with the applicable Pricing Supplement and the terms of such
security, but may be an amount less than the amount payable at the maturity of
the principal of such Discount Note. For federal income tax considerations with
respect to Discount Notes, see "Certain U.S. Federal Income Tax
Considerations -- U.S. Holders -- Original Issue Discount" herein.
The Notes may be presented for registration of transfer or exchange at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York.
References to the "Securities" in the Prospectus include the Notes. For a
further description of the Trustee and the rights attaching to different series
of Securities under the Indenture, including the covenants, modification
provisions and events of default relating to the Notes, see "Description of
Securities" in the Prospectus. Unless otherwise specified in the applicable
Pricing Supplement, each Note will have the terms described below.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in New York, New York or (i) with
respect to Notes denominated in a Specified Currency other than U.S. dollars,
the principal financial center of the country of the Specified Currency as
specified in the applicable Pricing Supplement, (ii) with respect to Notes
denominated in European Currency Units ("ECUs"), Brussels, Belgium or (iii) with
respect to LIBOR Notes, London, England. "London
S-3
<PAGE> 5
Banking Day" means any day on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
PAYMENT OF PRINCIPAL AND INTEREST
Payments of principal of and interest on all Notes will be made in the
applicable Specified Currency, provided that holders of certain Notes
denominated in a Specified Currency other than U.S. dollars may elect to have
such payments converted to U.S. dollars. See "Special Provisions Relating to
Multi-Currency Notes -- Payment of Principal and Interest." Unless otherwise
specified in the applicable Pricing Supplement, interest on the Certificated
Notes (other than interest paid on the Maturity Date or upon earlier redemption
or repayment) will be paid by mailing a check (from an account at a bank outside
of the United States if such check is payable in a Specified Currency other than
U.S. dollars) to the holder at the address of such holder appearing on the
register for the Notes on the applicable Record Date (as defined below). At the
option of the Company or the holder of Certificated Notes in an aggregate
principal amount exceeding $5.0 million or the equivalent thereof in a Specified
Currency, interest on the Certificated Notes (other than interest paid on the
Maturity Date or upon earlier redemption or repayment) will be paid by wire
transfer to an account maintained by such holder with a bank located in the
United States for payments in U.S. dollars or the country of the Specified
Currency for other payments (which shall be Belgium in the case of ECUs),
provided that any such holder selecting such option shall have designated such
account by written notice to the Trustee no later than the Record Date preceding
the applicable Interest Payment Date. In the case of a Note issued between a
Record Date and the initial Interest Payment Date relating to such Record Date,
interest for the period ending on such initial Interest Payment Date shall be
paid to the person to whom such Note shall have been originally issued. Payments
of principal and interest on the Certificated Notes will be made, if at maturity
or upon earlier redemption, then on the Maturity Date or the date fixed for
redemption, as applicable, upon surrender of the Certificated Notes at the
Corporate Trust Office of the Trustee in The City of New York, and if upon
repayment prior to maturity, then on the applicable date for repayment (the
"Repayment Date"), provided that the holder shall have complied with the
requirements for repayment set forth herein and in the Certificated Notes. See
"Repayment" below. All such payments at maturity or upon any earlier redemption
or repayment shall be made in immediately available funds, provided that the
Certificated Notes to be paid are presented to the Corporate Trust Office of the
Trustee in The City of New York in time for the Trustee to make such payments in
such funds in accordance with its normal procedures. Any such payments made in a
Specified Currency other than U.S. dollars shall be made by wire transfer to an
account maintained by the holder, as designated by the holder by written notice
to the Trustee at least 15 calendar days prior to the date fixed for payment,
with a bank located in the country of the Specified Currency (which shall be
Belgium in the case of ECUs). Beneficial owners of Book-Entry Notes will be paid
in accordance with the Depositary's and its participants' procedures in effect
from time to time as described under "Book-Entry System" below.
Any payment of interest or principal required to be made on an Interest
Payment Date, at the Maturity Date, on a date fixed for redemption or on a
Repayment Date which is not a Business Day need not be made on such day, but may
be made, except as provided below with respect to LIBOR Notes (as defined
below), on the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date, at the Maturity Date, on the date fixed for
redemption or on the Repayment Date, as the case may be, and no additional
interest shall accrue as a result of such delayed payment. 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 Notes in respect of which payments
are made.
INTEREST RATES
Interest rates, Base Rates, Spreads and Spread Multipliers are subject to
change by the Company from time to time, but no such change will affect any Note
theretofore issued or which the Company has agreed to sell. Unless otherwise
indicated in the applicable Pricing Supplement, the Interest
S-4
<PAGE> 6
Payment Dates and the Record Dates for each Fixed Rate Note shall be as
described below under "Fixed Rate Notes." The Interest Payment Dates for each
Floating Rate Note shall be as indicated in the applicable Pricing Supplement,
and unless otherwise specified in the applicable Pricing Supplement, the Record
Dates for a Floating Rate Note will be the fifteenth day (whether or not a
Business Day) next preceding each Interest Payment Date.
FIXED RATE NOTES
Each Fixed Rate Note will bear interest from its date of issue at the
annual rate stated on the face thereof and in the applicable Pricing Supplement
until the principal amount thereof is paid on the maturity date, or upon earlier
redemption or repayment, if applicable. Unless otherwise indicated in the
applicable Pricing Supplement (and except as provided above in "Payment of
Principal and Interest"), the Interest Payment Dates for the Fixed Rate Notes
will be June 15 and December 15 of each year, and the Record Dates will be June
1 and December 1 of each year. Interest on Fixed Rate Notes will be computed and
paid on the basis of a 360-day year of twelve 30-day months.
FLOATING RATE NOTES
Each Floating Rate Note will bear interest from its date of issue to the
first Interest Reset Date (as defined below) for such Note at the Initial
Interest Rate set forth on the face thereof and in the applicable Pricing
Supplement. Thereafter, the interest rate on each Floating Rate Note for each
Reset Period (as defined below) will be equal to the interest rate calculated by
reference to the Base Rate specified on the face thereof and in the applicable
Pricing Supplement plus or minus a fixed percentage per annum (the "Spread"), if
any, or times a fixed factor (the "Spread Multiplier"), if any, in each case as
specified in the applicable Pricing Supplement, until the principal thereof is
paid on the maturity date, or upon earlier redemption or repayment, if
applicable. The Base Rate for a Floating Rate Note will be (a) the Commercial
Paper Rate, in which case such Note shall be a "Commercial Paper Rate Note," (b)
LIBOR, in which case such Note shall be a "LIBOR Note," (c) the Treasury Rate,
in which case such Note shall be a "Treasury Rate Note" or (d) such other Base
Rate, in each case as is specified on the face of the Floating Rate Note and in
the applicable Pricing Supplement.
The Company will appoint, and enter into an agreement with, an agent (a
"Calculation Agent") to calculate interest rates on Floating Rate Notes. Unless
otherwise provided in a Pricing Supplement, the Calculation Agent for each
Floating Rate Note will be the Trustee.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semiannually or annually (such type of period being
the "Reset Period" for such Note, and the first day of each Reset Period being
an "Interest Reset Date"), as specified on the face thereof and in the
applicable Pricing Supplement. Unless otherwise specified in the applicable
Pricing Supplement, the Interest Reset Dates will be: in the case of Floating
Rate Notes that reset daily, each Business Day; in the case of Floating Rate
Notes (other than Treasury Rate Notes) that reset weekly, Wednesday of each
week; in the case of Treasury Rate Notes that reset weekly, Tuesday of each
week; in the case of Floating Rate Notes that reset monthly, the third Wednesday
of each month; in the case of Floating Rate Notes that reset quarterly, the
third Wednesday of each March, June, September and December; in the case of
Floating Rate Notes that reset semiannually, the third Wednesday of each of two
months of each year specified on the face thereof and in the applicable Pricing
Supplement; and, in the case of Floating Rate Notes that reset annually, the
third Wednesday of one month of each year specified on the face thereof and in
the applicable Pricing Supplement; provided, however, that the interest rate in
effect for the ten days immediately prior to the Maturity Date of a Floating
Rate Note, or, with respect to any portion of the principal amount of a Floating
Rate Note to be redeemed or repaid, if applicable, the date of redemption or
Repayment Date, will be that in effect on the tenth day preceding such Maturity
Date or such date of redemption or Repayment Date. If an Interest Reset Date for
a 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.
S-5
<PAGE> 7
The interest rate for each Reset Period will be the rate determined by the
Calculation Agent by reference to an interest determination date pertaining to
such Reset Period. The interest determination date pertaining to a Reset Period
for a Commercial Paper Rate Note (the "Commercial Paper Interest Determination
Date") will be the Business Day prior to the Interest Reset Date that commences
such Reset Period. The interest determination date pertaining to a Reset Period
for a LIBOR Note (the "LIBOR Interest Determination Date") will be the second
London Banking Day prior to the Interest Reset Date that commences such Reset
Period. The interest determination date pertaining to a Reset Period for a
Treasury Rate Note (the "Treasury Interest Determination Date") will be the day
of the week in which the Interest Reset Date that commences such Reset Period
falls on which Treasury bills would normally be auctioned. Treasury bills are
usually sold at auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is usually held on the following Tuesday,
except that such auction may be held on the preceding Friday. If, as the result
of a legal holiday, an auction is so held on the preceding Friday, such Friday
will be the Treasury Interest Determination Date pertaining to the Reset Period
commencing in the next succeeding week. If an auction date shall fall on any
Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date
shall instead be the first Business Day immediately following such auction date.
Except as provided below, interest on Floating Rate Notes will be payable,
in the case of Floating Rate Notes that reset daily, weekly or monthly, on the
third Wednesday of each month as specified on the face thereof and in the
applicable Pricing Supplement; in the case of Floating Rate Notes that reset
quarterly, on the third Wednesday of March, June, September and December of each
year; in the case of Floating Rate 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 Pricing Supplement; and, in the case of Floating Rate Notes
that reset annually, on the third Wednesday of one month of each year specified
on the face thereof and in the applicable Pricing Supplement (each such day
being an "Interest Payment Date"). If an Interest Payment Date with respect to a
Floating Rate Note would otherwise fall on a day that is not a Business Day,
such Interest Payment Date will be the following day that is a Business Day,
except that, in the case of a LIBOR Note, if such Business Day falls in the next
calendar month, such Interest Payment Date will be the immediately preceding
Business Day.
Unless otherwise indicated in the applicable Pricing Supplement, each
payment of interest on a Floating Rate Note will include interest accrued to but
excluding the applicable Interest Payment Date; provided, however, that if the
interest rate on such Note resets daily or weekly, interest payable on any
Interest Payment Date, other than interest payable on any date on which
principal for such Note is payable, will include interest accrued to and
including the immediately preceding Record Date. Accrued interest from the date
of issue or from the last date to which interest has been paid is calculated by
multiplying the face amount of a Note by an accrued interest factor. This
accrued interest factor is computed by adding the interest factors calculated
for each day from the date of issue, or from the last date to which interest has
been paid, to the date for which accrued interest is being calculated. The
interest factor (expressed as a decimal rounded upward, if necessary, to the
nearest one hundred-thousandth of a percentage point (e.g., 9.876541%, or
.09876541, being rounded to 9.87655%, or .0987655, respectively)) for each such
day is computed by dividing the interest rate (expressed as a decimal rounded
upward, if necessary, to the nearest one hundred-thousandth of a percentage
point) applicable to such date by 360, in the case of Commercial Paper Rate
Notes and LIBOR Notes, or by the actual number of days in the year, in the case
of Treasury Rate Notes.
The Calculation Agent will, upon the request of the holder of any Floating
Rate Note, provide the interest rate then in effect and, if determined, the
interest rate that will become effective on the next Interest Reset Date with
respect to such Note.
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
that may accrue during any Reset Period (a "Maximum Interest Rate") and (ii) a
minimum numerical interest rate limitation, or floor, on the rate of interest
that may accrue during any Reset Period (a "Minimum Interest Rate"). The
interest rate on the Notes will in no event be higher than the maximum rate
permitted by New York law as the same
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may be modified by United States law of general application. Under present New
York law, the maximum rate of interest is 25% per annum on a simple interest
basis. This limit may not apply to Notes in which $2,500,000 or more has been
invested.
"Index Maturity" is the particular maturity of the type of instrument or
obligation from which a Base Rate is calculated.
Commercial Paper Rate Notes
Each Commercial Paper Rate Note will bear interest for each Reset Period at
the interest rate (calculated with reference to the Commercial Paper Rate on the
Commercial Paper Interest Determination Date for such Reset Period and the
Spread or Spread Multiplier, if any) specified in such Note and in the
applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement,
"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 that date for commercial paper having the Index Maturity designated
in the applicable Pricing Supplement placed on behalf of industrial issuers
whose corporate bonds are rated "AA," or the equivalent, from a nationally
recognized securities rating agency as such rate is made available by the
Federal Reserve Bank of New York for such date. In the event that such rate is
not made available by the Federal Reserve Bank of New York by 3:00 p.m., New
York City time, on such Commercial Paper Interest Determination Date, 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 (each as rounded upward, if necessary, to the nearest one
hundred-thousandth of a percentage point) of the offered rates for such
commercial paper quoted as of 11:00 a.m., New York City time, on such Commercial
Paper Interest Determination Date by three leading dealers of commercial paper
in The City of New York selected, after consultation with the Company, by the
Calculation Agent; provided, however, that if the dealers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date will be the Commercial Paper Rate in effect on such
Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
upwards, if necessary, to the nearest one hundred-thousandth of a percentage
point) calculated in accordance with the following formula:
D X 360
Money Market Yield = ------------- X 100
360 - (D X M)
where "D" refers to the per annum rate for the commercial paper, quoted on a
bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
LIBOR Notes
Each LIBOR Note will bear interest for each Reset Period at the interest
rate (calculated with reference to LIBOR on the LIBOR Interest Determination
Date for such Reset Period and the Spread or Spread Multiplier, if any)
specified in such Note and in the applicable Pricing Supplement.
Unless otherwise indicated in the applicable Pricing Supplement, LIBOR will
be determined by the Calculation Agent in accordance with the following
provisions:
(i) On each LIBOR Interest Determination Date, LIBOR will be, as
specified in the applicable Pricing Supplement, either: (a) the arithmetic
mean of the offered rates for deposits having the Index Maturity designated
in the applicable Pricing Supplement, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date,
that appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time,
on such LIBOR
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Interest Determination Date, if at least two such offered rates appear on
the Reuters Screen LIBO Page ("LIBOR Reuters"), or (b) the rate for
deposits having the Index Maturity designated in the applicable Pricing
Supplement, commencing on the second London Business Day immediately
following such LIBOR Interest Determination Date, that appears on Telerate
Page 3750 as of 11:00 a.m., London time, on such LIBOR Interest
Determination Date ("LIBOR Telerate"). "Reuters Screen LIBO Page" means the
display designated as page "LIBO" on the Reuters Monitor Money Rates
Service (or such other page as may replace page LIBO on that service for
the purpose of displaying London interbank offered rates of major banks).
"Telerate Page 3750" means the display designated as page "3750" on the
Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the
British Bankers' Association for the purpose of displaying London interbank
offered rates for deposits). If neither LIBOR Reuters nor LIBOR Telerate is
specified in the applicable Pricing Supplement, LIBOR will be determined as
if LIBOR Telerate had been specified. If at least two such offered rates
appear on the Reuters Screen LIBO Page, the rate in respect of such LIBOR
Interest Determination Date will be the arithmetic mean of such offered
rates as determined by the Calculation Agent. If fewer than two offered
rates appear on the Reuters Screen LIBO Page, or if no rate appears on
Telerate Page 3750, as applicable, LIBOR in respect of such LIBOR Interest
Determination Date will be determined as if the parties had specified the
rate described in (ii) below.
(ii) On any LIBOR Interest Determination Date on which fewer than two
offered rates appear on the Reuters Screen LIBO Page, as specified in
(i)(a) above, or on which no rate appears on Telerate Page 3750, as
specified in (i)(b) above, as applicable, LIBOR will be determined on the
basis of the rates at which deposits having the Index Maturity designated
in the applicable Pricing Supplement are offered at approximately 11:00
a.m., London time, on such LIBOR Interest Determination Date by four major
banks in the London interbank market (the "Reference Banks") selected,
after consultation with the Company, by the Calculation Agent to prime
banks in the London interbank market having the Index Maturity designated
in the applicable Pricing Supplement, commencing on the second London
Banking Day immediately following such LIBOR Interest Determination Date
and in a principal amount equal to an amount of not less than $1,000,000
that is representative for a single transaction in such market at such
time. The Calculation Agent will request the principal London office of
each of such Reference Banks to provide a quotation of its rate. If at
least two such quotations are provided, LIBOR in respect of such LIBOR
Interest Determination Date will be the arithmetic mean (rounded upward, if
necessary, to the nearest one hundred-thousandth of a percentage point) of
such quotations. If fewer than two quotations are provided, LIBOR in
respect of such LIBOR Interest Determination Date will be the arithmetic
mean (rounded upward, if necessary, to the nearest one hundred-thousandth
of a percentage point) of the rates quoted at approximately 11:00 a.m., New
York City time, on such LIBOR Interest Determination Date by three major
banks in The City of New York selected, after consultation with the
Company, by the Calculation Agent for loans in U.S. dollars to leading
European banks having the Index Maturity designated in the applicable
Pricing Supplement, commencing on the second London Banking Day immediately
following such LIBOR Interest Determination Date and in a principal amount
equal to an amount of not less than $1,000,000 that is representative for a
single transaction in such market at such time; provided, however, that if
the banks in The City of New York selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR with respect to
such LIBOR Interest Determination Date will be LIBOR in effect on such
LIBOR Interest Determination Date.
Treasury Rate Notes
Each Treasury Rate Note will bear interest for each Reset Period at the
interest rate (calculated with reference to the Treasury Rate on the Treasury
Interest Determination Date for such Reset Period and the Spread or Spread
Multiplier, if any) specified in such Note and in the applicable Pricing
Supplement.
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Unless otherwise indicated in the applicable Pricing Supplement, "Treasury
Rate" means, with respect to any Treasury Interest Determination Date, the
auction average rate (expressed as a bond equivalent, rounded upward, if
necessary, to the nearest one hundred-thousandth of a percentage point, on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
for the most recent auction of direct obligations of the United States
("Treasury bills") having the Index Maturity designated in the applicable
Pricing Supplement, as made available by the U.S. Department of the Treasury. In
the event that the results of the auction of Treasury bills having the Index
Maturity designated in the applicable Pricing Supplement are not made available
as provided above by 3:00 p.m., New York City time, on such Treasury Interest
Determination Date or no such auction is held in a particular week (or on the
preceding Friday, if applicable), then the Treasury Rate shall be calculated by
the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, rounded upward, if necessary, to the nearest one hundred-thousandth
of a percentage point, 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 3:30 p.m., New York City time, on such Treasury Interest
Determination Date, of three leading primary U.S. government securities dealers
selected, after consultation with the Company, by the Calculation Agent for the
issue of Treasury bills with a remaining maturity closest to the Index Maturity
designated in the applicable Pricing Supplement; 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 on such Treasury
Interest Determination Date.
CURRENCY INDEXED NOTES
General.
The Company may from time to time offer Notes ("Currency Indexed Notes"),
the principal amount of which payable at the Maturity Date, and/or the interest
payable on each Interest Payment Date and at the Maturity Date, is determined by
the difference in the rate of exchange between the Specified Currency and the
other currency or currency unit specified as the Indexed Currency (the "Indexed
Currency") in the applicable Pricing Supplement on certain specified dates.
Unless otherwise specified in the applicable Pricing Supplement, holders of
Currency Indexed Notes (i) will be entitled to receive a principal amount in
respect of such Currency Indexed Notes exceeding the amount designated as the
face amount in respect of such Currency Indexed Notes in the applicable Pricing
Supplement (the "Face Amount") if, at the Maturity Date, the rate at which the
Specified Currency can be exchanged for the Indexed Currency is greater than the
rate of such exchange designated as the Base Exchange Rate, expressed in units
of the Indexed Currency per one unit of the Specified Currency, in the
applicable Pricing Supplement (the "Base Exchange Rate"), and will be entitled
to receive a principal amount in respect of such Currency Indexed Notes less
than the Face Amount of such Currency Indexed Notes, if, at the Maturity Date,
the rate at which the Specified Currency can be exchanged for the Indexed
Currency is less than such Base Exchange Rate and/or (ii) will be entitled to
receive an amount of interest on each Interest Payment Date and/or at the
Maturity Date at an interest rate greater than the base interest rate of such
Currency Indexed Note as designated in the applicable Pricing Supplement (the
"Base Interest Rate") if, on such Interest Payment Date and/or at the Maturity
Date, as the case may be, the rate at which the Specified Currency can be
exchanged into the Indexed Currency is greater than the Base Exchange Rate, and
will be entitled to receive an amount of interest on each Interest Payment Date
and/or at the Maturity Date at an interest rate less than the Base Interest Rate
if, on such Interest Payment Date and/or at the Maturity Date, as the case may
be, the rate at which the Specified Currency can be exchanged into the Indexed
Currency is less than the Base Exchange Rate, in each case determined as
described below under "Payment of Principal and Interest." Information as to the
relative historical value of the applicable Specified Currency against the
applicable Indexed Currency, any exchange controls applicable to such Specified
Currency or Indexed Currency and the tax consequences to holders will be set
forth in the applicable Pricing Supplement. See "Foreign Currency and Other
Risks."
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Unless otherwise specified in the applicable Pricing Supplement, the term
"Exchange Rate Day" shall mean any day which is a Business Day in The City of
New York and, (i) if the Specified Currency or Indexed Currency is any currency
or currency unit other than the U.S. Dollar or the ECU, a Business Day in the
principal financial center of the country of such Specified Currency or Indexed
Currency, or (ii) in the case of an ECU, a day which is not a non-ECU clearing
day as determined by the ECU Banking Association in Paris.
Payment of Principal and Interest.
Unless otherwise specified in the applicable Pricing Supplement, principal
of a Currency Indexed Note will be payable by the Company in the Specified
Currency at the Maturity Date in an amount equal to the Face Amount of the
Currency Indexed Note, plus or minus an amount determined by the determination
agent specified in the applicable Pricing Supplement (the "Determination Agent")
by reference to the difference between the Base Exchange Rate and the rate at
which the Specified Currency can be exchanged for the Indexed Currency as
determined on the second Exchange Rate Day (the "Determination Date") prior to
the Maturity Date of such Currency Indexed Note by the Determination Agent based
upon the arithmetic mean of the open market spot offer quotations for the
Indexed Currency obtained by the Determination Agent from the Reference Dealers
(as defined below) in The City of New York at 11:00 a.m., New York City time, on
the Determination Date, for an amount of Indexed Currency equal to the Face
Amount of such Currency Indexed Note multiplied by the Base Exchange Rate, for
settlement on the Maturity Date (such rate of exchange, as so determined and
expressed in units of the Indexed Currency per one unit of the Specified
Currency, is hereafter referred to as the "Spot Rate"). If such quotations from
the Reference Dealers are not available on the Determination Date due to
circumstances beyond the control of the Company or the Determination Agent, the
Spot Rate will be determined on the basis of the most recently available
quotations from the Reference Dealers. The principal amount of the Currency
Indexed Notes determined by the Determination Agent to be payable at the
Maturity Date will be payable to the holders thereof in the manner set forth
herein and in the applicable Pricing Supplement. As used herein, the term
"Reference Dealers" shall mean the three banks or firms specified as such in the
applicable Pricing Supplement or, if any of them shall be unwilling or unable to
provide the requested quotations, such other major money center bank or banks in
The City of New York selected by the Company, in consultation with the
Determination Agent, to act as Reference Dealer or Reference Dealers in
replacement therefor. In the absence of manifest error, the determination by the
Determination Agent of the Spot Rate and the principal amount of Currency
Indexed Notes payable at the Maturity Date thereof shall be final and binding on
the Company and the holders of such Currency Indexed Notes.
Unless otherwise specified in the applicable Pricing Supplement, on the
basis of the aforesaid determination by the Determination Agent and the formulae
and limitations set forth below, (i) if the Base Exchange Rate equals the Spot
Rate for any Currency Indexed Note, then the principal amount of such Currency
Indexed Note Payable at the Maturity Date will be equal to the Face Amount of
such Currency Indexed Note; (ii) if the Spot Rate exceeds the Base Exchange Rate
(i.e., the Specified Currency has appreciated against the Indexed Currency
during the term of the Currency Indexed Note), then the principal amount so
payable will be greater than the Face Amount of such Currency Indexed Note up to
an amount equal to twice the Face Amount of such Currency Indexed Note; (iii) if
the Spot Rate is less than the Base Exchange Rate (i.e., the Specified Currency
has depreciated against the Indexed Currency during the term of the Currency
Indexed Note) but is greater than one-half of the Base Exchange Rate, then the
principal amount so payable will be less than the Face Amount of such Currency
Indexed Note; and (iv) if the Spot Rate is less than or equal to one-half of the
Base Exchange Rate, then the Spot Rate will be deemed to be one-half of the Base
Exchange Rate and no principal amount of the Currency Indexed Note will be
payable at the Maturity Date.
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Unless otherwise specified in the applicable Pricing Supplement, the
formulae to be used by the Determination Agent to determine the principal amount
of a Currency Indexed Note payable at the Maturity Date will be as follows:
If the Spot Rate exceeds or equals the Base Exchange Rate, the principal
amount of a Currency Indexed Note payable at the Maturity Date shall equal:
Spot Rate -- Base Exchange Rate
Face Amount + ( Face Amount X ------------------------------- ).
Spot Rate
If the Base Exchange Rate exceeds the Spot Rate, the principal amount of a
Currency Indexed Note payable at the Maturity Date (which shall, in no event, be
less than zero) shall equal:
Base Exchange Rate -- Spot Rate
Face Amount - ( Face Amount X ------------------------------- ).
Spot Rate
If the formulae set forth above are applicable to a Currency Indexed Note,
the maximum principal amount payable at the Maturity Date in respect of such a
Currency Indexed Note would be an amount equal to twice the Face Amount and the
minimum principal amount payable would be zero.
Unless otherwise specified in the applicable Pricing Supplement, interest
will be payable by the Company in the Specified Currency based on the Face
Amount of the Currency Indexed Notes, and such interest will be payable at the
rate and times and in the manner set forth herein and in the applicable Pricing
Supplement. In the event that the applicable Pricing Supplement specifies that
interest on the Currency Indexed Notes will be determined by reference to the
Indexed Currency and unless otherwise specified in such Pricing Supplement,
interest will be payable by the Company in the Specified Currency on each
Interest Payment Date and at the Maturity Date at a rate per annum equal to the
Base Interest Rate specified in the applicable Pricing Supplement multiplied by
an Interest Index Factor. The "Interest Index Factor" shall be an amount
determined by the Determination Agent by reference to the following formula:
Interest Spot Rate
------------------
Base Exchange Rate
where, "Interest Spot Rate" is (i) if at an Interest Payment Date, the rate at
which the Specified Currency can be exchanged for the Indexed Currency as
determined on the second Exchange Rate Day prior to such Interest Payment Date
(the "Interest Determination Date") by the Determination Agent in the manner
specified in the applicable Pricing Supplement, on such Interest Determination
Date, or (ii) if at the Maturity Date, the Spot Rate. The amount of interest
determined by the Determination Agent to be payable on any Interest Payment Date
and at the Maturity Date in respect of the Currency Indexed Notes will be
payable to the holders thereof in the manner set forth herein and in the
applicable Pricing Supplement. In the absence of manifest error, the
determination by the Determination Agent of the Interest Index Factor, the
Interest Spot Rate on each Interest Payment Date, the interest payments payable
and the Spot Rate at the Maturity Date on the Currency Indexed Notes shall be
final and binding on the Company and the holders of such Currency Indexed Notes.
Unless otherwise specified in the applicable Pricing Supplement, on the
basis of the aforesaid determinations by the Determination Agent, (i) if the
Base Exchange Rate equals the Interest Spot Rate on any Interest Determination
Date or the Spot Rate on the Determination Date for any Currency Indexed Note,
then the amount of interest payable in respect of such Currency Indexed Note on
the applicable Interest Payment Date or at the Maturity Date, as the case may
be, would reflect an interest rate equal to the Base Interest Rate of such
Currency Indexed Note; (ii) if the Interest Spot Rate on any Interest
Determination Date or the Spot Rate on the Determination Date exceeds the Base
Exchange Rate (i.e., the Specified Currency has appreciated against the Indexed
Currency during the term of the Currency Indexed Note), then the amount of
interest so payable would reflect an interest rate greater than the Base
Interest Rate of such Currency Indexed Note; and (iii) if the Interest Spot Rate
on any Interest Determination Date or the Spot Rate on the
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Determination Date is less than the Base Exchange Rate (i.e., the Specified
Currency has depreciated against the Indexed Currency during the term of the
Currency Indexed Note), then the amount of interest so payable would reflect an
interest rate less than the Base Interest Rate of such Currency Indexed Note.
Unless otherwise specified in the applicable Pricing Supplement, in the
event of any redemption or repayment of a Currency Indexed Note prior to its
Maturity Date, the term "Maturity Date" used above would refer to the redemption
or repayment date of such Currency Indexed Note.
PROSPECTIVE INVESTORS SHOULD CONSULT THEIR OWN FINANCIAL AND LEGAL ADVISORS
AS TO THE RISKS ENTAILED BY AN INVESTMENT IN CURRENCY INDEXED NOTES. SUCH
CURRENCY INDEXED NOTES ARE NOT AN APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE
UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY TRANSACTIONS. SEE "FOREIGN
CURRENCY AND OTHER RISKS."
COMMODITY INDEXED NOTES
The Pricing Supplement relating to a Commodity Indexed Note will set forth
the method by which the amount of interest payable on an Interest Payment Date
and the amount of interest and principal payable at the Maturity Date in respect
of such Commodity Indexed Note will be determined, a description of certain tax
consequences to holders of Commodity Indexed Notes, a description of certain
risks associated with investments in Commodity Indexed Notes and other
information relating to such Commodity Indexed Notes.
REDEMPTION
The Notes will not be subject to redemption through the operation of a
sinking fund, but each Note may be redeemed at the option of the Company at any
time on and after the date, if any, specified at the time of sale and set forth
in the applicable Pricing Supplement and on the face of such Note. A Note will
not be redeemable if no such date is set forth on such Note. On and after such
date, if any, such Note will be redeemable in whole or from time to time in part
on notice mailed not more than 60 nor less than 30 days prior to the date of
redemption at a redemption price set forth in the applicable Pricing Supplement,
together with interest accrued thereon to the date of redemption.
REPAYMENT
The Pricing Supplement relating to each Note will indicate either that such
Note cannot be repaid prior to maturity or that such Note will be repayable at
the option of the holder prior to maturity on the Repayment Date or Repayment
Dates, if any, specified in the applicable Pricing Supplement and on the face of
such Note. A Note will not be repayable if no such Repayment Date is set forth
on such Note. On such Repayment Date or Repayment Dates, if any, such Note will
be repayable in whole or from time to time in part at a price set forth in the
applicable Pricing Supplement, together with interest accrued on such portion to
the date of repayment.
In order for a Note to be repaid, the Company must receive at the Corporate
Trust Office of the Trustee in the Borough of Manhattan, The City of New York,
during the period from and including the first day of the Repayment Option
Period set forth on the face of such Note for such Repayment Date to and
including the close of business on the last day of such Repayment Option Period
(or if such day is not a business day, the next succeeding business day): (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 from a member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank or a trust company
in the United States of America, dated no later than the last day of such
Repayment Option Period (or if such day is not a business day, the next
succeeding business day) setting forth the name of the holder of the Note, the
principal amount of the Note, the portion of the principal amount of the Note to
be repaid, a statement that the option to elect repayment is being exercised
thereby and a guarantee that the Note to be repaid in whole or in part (with the
form entitled "Option to Elect Repayment" on the reverse of the Note duly
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completed) will be received at the Corporate Trust Office of the Trustee in the
Borough of Manhattan, The City of New York, not later than five business days
after the date of such telegram, telex, facsimile transmission or letter and
such Note and form duly completed must be received at the Corporate Trust Office
of the Trustee in the Borough of Manhattan, The City of New York, by such fifth
business day. Effective exercise of any repayment option by the holder of any
Note shall be irrevocable. No transfer or exchange of any Note (or, in the event
that any Note is to be repaid in part, such portion of the Note to be repaid)
will be permitted after exercise of a repayment option. A 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 which is to be repaid is equal
to $1,000 or any integral multiple thereof for Notes denominated in U.S. dollars
or 10,000 units of the Specified Currency or any integral multiple thereof for
Notes denominated in a Specified Currency other than U.S. dollars. All questions
as to the validity, eligibility (including time of receipt) and acceptance of
any Note for repayment will be determined by the Company, whose determination
will be final, binding and non-appealable. For purposes of this provision,
"business day" means any day other than Saturday and Sunday or a legal holiday
or any day on which banking institutions in New York, New York are authorized or
required by law or regulation to close.
If a Note is represented by a Global Security (as defined below), the
Depositary's nominee will be the holder of such Note and, therefore, will be the
only entity that can exercise a right to repayment. In order to ensure that the
Depositary's nominee will timely exercise a right to repayment with respect to a
particular Note, the beneficial owner of such Note must instruct the broker or
other direct or indirect participant through which it holds an interest in such
Note to notify the Depositary of its desire to exercise a right to repayment.
Different firms have different cut-off times for accepting instructions from
their customers, and, accordingly, each beneficial owner should consult the
broker or other direct or indirect participant through which it holds an
interest in a Note in order to ascertain the cut-off time by which such an
instruction must be given in order for timely notice to be delivered to the
Depositary.
BOOK-ENTRY SYSTEM
Upon issuance, all Book-Entry Notes having the same Specified Currency,
Original Issue Date, Maturity Date, reset, extension, redemption and repayment
provisions, Interest Payment Dates, Record Dates, and, in the case of Fixed Rate
Notes, interest rate, or, in the case of Floating Rate Notes, Base Rate, Initial
Interest Rate, Index Maturity, Reset Period, Interest Payment Dates, Spread or
Spread Multiplier, if any, Maximum Interest Rate, if any, and Minimum Interest
Rate, if any, and in the case of Fixed Rate Notes or Floating Rate Notes that
are also Currency Indexed Notes, Specified Currency, Indexed Currency and Base
Exchange Rate, or that are also Commodity Indexed Notes, the same comparable
terms, will be represented by a single global security (a "Global Security").
Each Global Security representing Book-Entry Notes will be deposited with, or on
behalf of, DTC or such other Depositary as is specified in the applicable
Pricing Supplement, and registered in the name of the Depositary or its nominee.
Book-Entry Notes will not be exchangeable for Certificated Notes at the option
of the holder and, except as set forth below, will not otherwise be issuable in
definitive form. Unless otherwise specified in the applicable Pricing
Supplement, DTC will be the Depositary. DTC currently only accepts Notes that
are denominated in U.S. dollars.
DTC has advised the Company and the Agents as follows: DTC is a
limited-purpose trust company organized under the New York Banking Law, a
"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code and a "clearing agency" registered pursuant
to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC was
created to hold securities of its participants and to facilitate the clearance
and settlement of securities transactions among its participants in such
securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of securities
certificates. DTC's participants include securities brokers and dealers
(including the Agents), banks, trust companies,
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clearing corporations and certain other organizations, some of which (and/or
their representatives) own DTC. Access to DTC's book-entry system is also
available to others, such as securities brokers and dealers, banks, and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
Upon the issuance by the Company of Book-Entry Notes represented by a
Global Security, the Depositary will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Book-Entry Notes
represented by such Global Security to the accounts of institutions that have
accounts with the Depositary ("participants"). The accounts to be credited shall
be designated by the agents or underwriters of such Book-Entry Notes or by the
Company if such Book-Entry Notes are offered and sold directly by the Company.
Ownership of beneficial interests in a Global Security will be limited to
participants or persons that hold interest through participants. Ownership of
beneficial interests in Book-Entry Notes represented by a Global Security will
be shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary (with respect to interests of participants
in the Depositary), or by participants in the Depositary or persons that may
hold interests through such participants (with respect to persons other than
participants in the Depositary). The laws of some states require that certain
purchasers of securities take physical delivery of such securities in definitive
form. Such limits and such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of the Global Security, the Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Book-Entry Notes
represented by such Global Security for all purposes under the Indenture. Except
as provided below, owners of beneficial interests in Book-Entry Notes
represented by a Global Security will not be entitled to have Book-Entry Notes
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Book-Entry Notes in definitive
form and will not be considered the owners or holders thereof under the
Indenture. Unless and until it is exchanged in whole or in part for individual
certificates evidencing the Book-Entry Notes represented thereby, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by the
Depositary or any nominee to a successor Depositary or any nominee of such
successor.
Payments of principal of and interest, if any, on the Book-Entry Notes
represented by a Global Security registered in the name of the Depositary or its
nominee will be made by the Company through the Trustee to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security.
Neither the Company, the Trustee nor the registrar for the Notes will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The Company has been advised that the Depositary, upon receipt of any
payment of principal of or interest on a Global Security, will credit
immediately the accounts of the related participants with payment in amounts
proportionate to their respective holdings in principal amount of beneficial
interest in such Global Security as shown on the records of the Depositary. The
Company expects that payments by participants to owners of beneficial interests
in a Global Security will be governed by standing customer instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such payments will be
the responsibility of such participants.
If the Depositary with respect to any Global Security or Global Securities
is at any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Company within 90 days, the Company will
issue Certificated Notes in exchange for the Book-Entry Notes represented by
such Global Security or Global Securities. In addition, the Company may at any
time
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and in its sole discretion determine not to have Global Securities, and, in such
event, will issue Certificated Notes in exchange for the Book-Entry Notes
represented by such Global Securities.
SPECIAL PROVISIONS RELATING TO MULTI-CURRENCY NOTES
GENERAL
Unless otherwise indicated in the applicable Pricing Supplement, if any
Notes are to be denominated in U.S. dollars, payments of principal of and
interest on such Notes will be made in U.S. dollars. If any of the Notes are to
be denominated in a Specified Currency other than U.S. dollars ("Multi-Currency
Notes"), the following provisions shall apply which are in addition to, and to
the extent inconsistent therewith replace, the description of the general terms
and provisions of Notes set forth in the accompanying Prospectus and elsewhere
in this Prospectus Supplement.
The authorized denominations of Multi-Currency Notes will be the amounts of
the Specified Currency for such Notes that are equivalent, at the Exchange Rate
(as defined below) for purchases of such Specified Currency on the Business Day
immediately preceding the trade date for such Notes, to $100,000 (rounded down
to an integral multiple of 10,000 units of such Specified Currency), and any
larger amount that is an integral multiple of 10,000 units of such Specified
Currency.
Unless otherwise indicated in the applicable Pricing Supplement, payment of
the purchase price of Multi-Currency Notes will be made in immediately available
funds.
CURRENCY EXCHANGE
Unless otherwise specified in the applicable Pricing Supplement, purchasers
are required to pay for Multi-Currency Notes in the Specified Currency. At the
present time, there are limited facilities in the United States for conversion
of U.S. dollars into foreign currencies or currency units, and vice versa, and
it is believed that only a limited number of U.S. banks offer foreign currency
checking or savings facilities in the United States. However, if requested by a
purchaser at the time an offer to purchase an applicable Note is made to an
Agent (or by such other day as such Agent may determine), such Agent will
arrange for the conversion of U.S. dollars into the applicable Specified
Currency to enable the purchaser to pay for such Multi-Currency Note. Each such
conversion will be made by the Agents on such terms and subject to such
conditions, limitations and charges as the Agents may from time to time
establish in accordance with their regular foreign exchange practices. All costs
of exchange will be borne by the purchasers of the Multi-Currency Notes.
Specific information about the foreign currency or currency units in which
a particular Multi-Currency Note is denominated, including historical exchange
rates and a description of the currency or currency units and any exchange
controls, will be set forth in the applicable Pricing Supplement.
PAYMENT OF PRINCIPAL AND INTEREST
Principal and interest, if any, on Multi-Currency Notes will be paid by the
Company in the Specified Currency. If so specified in the applicable Pricing
Supplement, at the request of a holder of a Multi-Currency Note, payments of
principal and interest in respect of such Note shall be paid in U.S. dollars.
Under such circumstances, the Company would be required to tender payment in
U.S. dollars at the Exchange Rate, and any costs associated with such conversion
would be borne by such holder through deduction from such payments. In such
case, a holder may elect to receive payments in U.S. dollars by delivering a
written request to the Trustee not later than the Record Date immediately
preceding the applicable payment date. Such election will remain in effect until
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee not later than the Record Date immediately preceding the
next Interest Payment Date or the fifteenth day preceding the Maturity Date, as
the case may be. Upon request, the Trustee will mail a copy of a form of request
to any holder.
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OUTSTANDING MULTI-CURRENCY NOTES
For purposes of calculating the principal amount of any Multi-Currency Note
payable in a Specified Currency which is outstanding under the Indenture for
purposes of determining whether the holders of the requisite principal amount of
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver under such Indenture or whether a quorum is present at
a meeting of holders of Securities, the principal amount of such Multi-Currency
Note at any time outstanding shall be deemed to be the U.S. dollar equivalent,
determined as of the date of the original issuance of such Multi-Currency Note,
of the principal amount of such Multi-Currency Note. Unless otherwise indicated
in the applicable Pricing Supplement, whenever the Indenture provides for any
distribution to holders, any amount in respect of any Multi-Currency Note shall
be treated for any such distribution as that amount of U.S. dollars that could
be obtained for such amount on such reasonable basis of exchange as the Company
may specify.
PAYMENT CURRENCY
If the principal of, or interest on, any Note is payable in a Specified
Currency that is not available to the Company for making payments thereof due to
the imposition of exchange controls or other circumstances beyond the control of
the Company, the Company will be entitled to satisfy its obligations to holders
of the Notes by making such payment in U.S. dollars on the basis of the Exchange
Rate on the second Business Day preceding the Interest Payment Date or the
second Business Day preceding the maturity of an installment of principal, as
the case may be (or, if no rate is quoted for such Specified Currency on such
date, the last date such rate is quoted). Any payment made under such
circumstances in U.S. dollars where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default under
the Indenture.
"Exchange Rate" means (a) with respect to U.S. dollars in which payment is
to be made on Multi-Currency Notes denominated in a composite currency unit, the
exchange rate between U.S. dollars and such composite currency unit reported by
the agency or organization, if any, responsible for overseeing such composite
currency unit or by the Council of the European Communities (in the case of ECU,
whose reports are currently based on the rates in effect at 2:30 p.m., Brussels
time, on the relevant exchange markets), as appropriate, on the applicable
Record Date with respect to an Interest Payment Date or the fifteenth day
immediately preceding the maturity of an installment of principal, or on such
other date provided in the Indenture, as the case may be; (b) with respect to
U.S. dollars in which payment is to be made on Multi-Currency Notes denominated
in a foreign currency, the noon U.S. dollar buying rate for that currency for
cable transfers quoted by the Exchange Rate Agent in The City of New York
designated by the Company on the Record Date with respect to an Interest Payment
Date or the fifteenth day immediately preceding the maturity of an installment
of principal, or on such other date provided therefor, as the case may be, as
certified for customs purposes by the Federal Reserve Bank of New York; and (c)
with respect to a Specified Currency other than U.S. dollars in which payment is
to be made on Multi-Currency Notes converted into U.S. dollars pursuant to the
Indenture as described above under "Payment Currency," the noon U.S. dollar
selling rate for that currency for cable transfers quoted by the Exchange Rate
Agent in The City of New York on the second Business Day preceding the
applicable Interest Payment Date or the second Business Day preceding the
maturity of an installment of principal, as the case may be, as certified for
customs purposes by the Federal Reserve Bank of New York. If for any reason such
rates are not available with respect to one or more currencies for which an
Exchange Rate is required, the Company shall use such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more commercial banks in The City of New York or in the country of
issue of the currency in question, or such other quotations as the Company, in
each case, shall deem appropriate. If there is more than one market for dealing
in any currency by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency shall be the largest market upon
which a nonresident issuer of securities designated in such currency would
purchase such currency in order to make payments in respect of such securities.
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<PAGE> 18
FOREIGN CURRENCY AND OTHER RISKS
EXCHANGE RATES
An investment in Multi-Currency Notes entails significant risks that are
not associated with a similar investment in a security denominated in U.S.
dollars. Similarly, an investment in a Currency Indexed Note entails significant
risks that are not associated with a similar investment in non-Currency Indexed
Notes. Such risks include, without limitation, the possibility of significant
changes in rates of exchange between the U.S. dollar and the Specified Currency
(and, in the case of Currency Indexed Notes, the rate of exchange between the
Specified Currency and the Indexed Currency for such Currency Indexed Note) and
the possibility of the imposition or modification of foreign exchange controls
by either the United States or foreign governments. Such risks generally depend
on economic, financial, political and military events over which the Company has
no control. To the extent the rate is not fixed by sovereign governments, the
exchange rate between the U.S. dollar and foreign currencies or currency units
is at any moment a result of the supply of and demand for such currencies or
currency units, and changes in the rate result over time from the interaction of
many factors, among which are rates of inflation, interest rate levels, balances
of payments and the extent of governmental surpluses or deficits in the
countries of the relevant currencies. These factors are in turn sensitive to the
monetary, fiscal and trade policies pursued by such governments and those of
other countries important to international trade and finance. In recent years,
rates of exchange between the U.S. dollar and certain foreign currencies have
been highly volatile and such volatility may be expected in the future.
Fluctuations in any particular exchange rate that have occurred in the past are
not necessarily indicative, however, of fluctuations in the rate that may occur
during the term of any Multi-Currency Note or Currency Indexed Note.
Depreciation of the Specified Currency applicable to a Multi-Currency Note
against the U.S. dollar would result in a decrease in the U.S. dollar-equivalent
yield of such Note, in the U.S. dollar-equivalent value of the principal
repayable at maturity of such Note and, generally, in the U.S. dollar-equivalent
market value of such Note. Similarly, depreciation of the Specified Currency
with respect to a Currency Indexed Note against the applicable Indexed Currency
would result in the principal amount payable with respect to such Currency
Indexed Note at the Maturity Date thereof being less than the Face Amount of
such Currency Indexed Note which, in turn, would decrease the effective yield of
such Currency Indexed Note below its stated interest rate and could also result
in a loss to the investor. See "Description of Notes -- Currency Indexed Notes."
Foreign exchange rates can either be fixed by sovereign governments or
float. Exchange rates of most economically developed nations are permitted to
fluctuate in value relative to the U.S. dollar. National governments, however,
rarely voluntarily allow their currencies to float freely in response to
economic forces. Sovereign governments in fact use a variety of techniques, such
as intervention by a country's central bank or imposition of regulatory controls
or taxes, to affect the exchange rate of their currencies. Exchange rates of
certain governments may from time to time be fixed by the central bank or other
agencies at a rate above or below that which might exist if the exchange rate
were allowed to float in response to changes in supply and demand. Governments
may also issue a new currency to replace an existing currency or alter the
exchange rate or relative exchange characteristics by devaluation or revaluation
of a currency. Thus, a special risk in purchasing Notes that are denominated in
or indexed to a foreign currency or currency unit is that their U.S. dollar
equivalent yields could be affected by governmental actions which could change
or interfere with theretofore freely determined currency valuation, fluctuations
in response to other market forces and the movement of currencies across
borders. There will be no adjustment or change in the terms of the
Multi-Currency Notes or Currency Indexed Notes in the event that exchange rates
should become fixed, or in the event of any devaluation or revaluation or
imposition of exchange or other regulatory controls or taxes, or in the event of
other developments, affecting the U.S. dollar or any applicable currency or
currency unit.
THE PROSPECTUS, INCLUDING THIS PROSPECTUS SUPPLEMENT AND ANY PRICING
SUPPLEMENT HERETO, DOES NOT DESCRIBE ALL RISKS OF AN INVESTMENT IN MULTI-
CURRENCY NOTES OR CURRENCY INDEXED NOTES AS SUCH RISKS EXIST AT THE DATE OF THIS
PROSPECTUS SUPPLEMENT OR AS SUCH RISKS MAY CHANGE FROM TIME TO TIME.
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THE COMPANY BELIEVES THAT THESE RISKS ARE POTENTIALLY TOO VARIABLE TO ASCERTAIN
AND TO DESCRIBE WITH ANY REASONABLE DEGREE OF CERTAINTY AND THAT PREPARATION OF
A LIST OF EVERY POTENTIAL MATERIAL RISK, INCORPORATING EVERY ECONOMIC,
FINANCIAL, POLITICAL AND MILITARY CIRCUMSTANCE, AMONG OTHER THINGS, WOULD BE
IMPRACTICAL, AND THE COMPANY DISCLAIMS ANY RESPONSIBILITY TO ADVISE PROSPECTIVE
PURCHASERS OF SUCH RISKS. PROSPECTIVE PURCHASERS SHOULD CONSULT THEIR OWN
FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN
MULTI-CURRENCY NOTES OR CURRENCY INDEXED NOTES. SUCH NOTES ARE NOT AN
APPROPRIATE INVESTMENT FOR INVESTORS WHO ARE UNSOPHISTICATED WITH RESPECT TO
FOREIGN CURRENCY TRANSACTIONS.
Unless otherwise indicated in the applicable Pricing Supplement, Notes
denominated in a Specified Currency other than the U.S. dollar or the ECU will
not be sold in, or to residents of, the country of the Specified Currency in
which such Notes are denominated. The information set forth in the Prospectus,
this Prospectus Supplement and the applicable Pricing Supplement is directed to
prospective purchasers who are United States residents and the Company disclaims
any responsibility to advise prospective purchasers who are residents of
countries other than the United States with respect to any matters that may
affect the purchase, holding or receipt of payments of principal of and interest
on Notes. Such persons should consult their own legal advisors with regard to
such matters.
GOVERNING LAW AND JUDGMENTS
Notes will be governed by and construed in accordance with the laws of the
State of New York. Courts in the United States have not customarily rendered
judgments for money damages denominated in any currency other than the U.S.
dollar. The Judiciary Law of the State of New York provides, however, that a
judgment or decree in an action based upon an obligation denominated in a
currency other than U.S. dollars will be rendered in the foreign currency of the
underlying obligation and converted into U.S. dollars at the rate of exchange
prevailing on the date of the entry of the judgment or decree.
EXCHANGE CONTROLS, ETC.
Governments have imposed from time to time exchange controls and may in the
future impose or revise exchange controls at or prior to a Note's maturity. Even
if there were no exchange controls, it is possible that the Specified Currency
for any particular Multi-Currency Note would not be available at an Interest
Payment Date or at such Note's maturity. In that event, the Company will repay
in U.S. dollars on the basis of the Exchange Rate on the second day prior to
such payment, or if such Exchange Rate is not then available, on the basis of
the most recently available Exchange Rate. See "Special Provisions Relating to
Multi-Currency Notes -- Payment Currency." No adjustment or change in the terms
of the Multi-Currency Notes or Currency Indexed Notes in the event of any
controls or unavailability will be made.
A Pricing Supplement with respect to the applicable Specified Currency
(which includes information with respect to applicable current foreign exchange
controls, if any) is a part of the Prospectus and this Prospectus Supplement.
The Pricing Supplement relating to each Multi-Currency Note or Currency Indexed
Note will contain information concerning relevant historical exchange rates for
the applicable Specified Currency and/or Indexed Currency, as the case may be, a
description of such currency or currencies and any exchange controls affecting
such currency or currencies. The information concerning exchange rates and
exchange rate controls, if any, is furnished as a matter of information only and
should not be regarded as indicative of the range of or trends in fluctuations
in currency exchange rates or an imposition of exchange rate controls that may
occur in the future. The Company disclaims any responsibility to advise
prospective purchasers of changes in such exchange rates or exchange controls
after the date of any such Pricing Supplement.
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RISKS OF INDEXED NOTES
AN INVESTMENT IN CURRENCY INDEXED NOTES AND COMMODITY INDEXED NOTES
(COLLECTIVELY, "INDEXED NOTES") INDEXED, AS TO PRINCIPAL OR INTEREST OR BOTH, TO
ONE OR MORE VALUES OF CURRENCIES (INCLUDING EXCHANGE RATES BETWEEN CURRENCIES),
COMMODITIES OR INTEREST RATE OR OTHER INDICES (COLLECTIVELY, "INDICES" OR
"INDEX") ENTAILS SIGNIFICANT RISKS THAT ARE NOT ASSOCIATED WITH SIMILAR
INVESTMENTS IN A CONVENTIONAL FIXED-RATE DEBT SECURITY. IF THE INTEREST RATE OF
SUCH AN INDEXED NOTE IS SO INDEXED, IT MAY RESULT IN AN INTEREST RATE THAT IS
LESS THAN THAT PAYABLE ON A CONVENTIONAL FIXED-RATE DEBT SECURITY ISSUED AT THE
SAME TIME, INCLUDING THE POSSIBILITY THAT NO INTEREST WILL BE PAID, AND, IF THE
PRINCIPAL AMOUNT OF SUCH AN INDEXED NOTE IS SO INDEXED, THE PRINCIPAL AMOUNT
PAYABLE AT MATURITY MAY BE LESS THAN THE ORIGINAL PURCHASE PRICE OF SUCH INDEXED
NOTE IF ALLOWED PURSUANT TO THE TERMS OF SUCH INDEXED NOTE, INCLUDING THE
POSSIBILITY THAT NO PRINCIPAL WILL BE PAID. THE SECONDARY MARKET FOR SUCH
INDEXED NOTES WILL BE AFFECTED BY A NUMBER OF FACTORS, INDEPENDENT OF THE
CREDITWORTHINESS OF THE COMPANY AND THE VALUE OF THE APPLICABLE CURRENCY,
COMMODITY OR INDEX, INCLUDING THE VOLATILITY OF THE APPLICABLE CURRENCY,
COMMODITY OR INTEREST RATE INDEX, THE TIME REMAINING TO THE MATURITY OF SUCH
INDEXED NOTES, THE AMOUNT OUTSTANDING OF SUCH INDEXED NOTES AND MARKET INTEREST
RATES. THE VALUE OF THE APPLICABLE CURRENCY, COMMODITY OR INDEX DEPENDS ON A
NUMBER OF INTER-RELATED FACTORS, INCLUDING ECONOMIC, FINANCIAL AND POLITICAL
EVENTS, OVER WHICH THE COMPANY HAS NO CONTROL. ADDITIONALLY, IF THE FORMULA USED
TO DETERMINE THE PRINCIPAL AMOUNT OR INTEREST PAYABLE WITH RESPECT TO SUCH
INDEXED NOTES CONTAINS A MULTIPLE OR LEVERAGE FACTOR, THE EFFECT OF ANY CHANGE
IN THE APPLICABLE CURRENCY, COMMODITY OR INDEX WILL BE INCREASED.
THE HISTORICAL EXPERIENCE OF THE RELEVANT CURRENCIES, COMMODITY OR INDICES
SHOULD NOT BE TAKEN AS AN INDICATION OF FUTURE PERFORMANCE OF SUCH CURRENCIES,
COMMODITIES INDICES DURING THE TERM OF ANY INDEXED NOTE. THE CREDIT RATINGS
ASSIGNED TO THE COMPANY'S MEDIUM-TERM NOTE PROGRAM ARE A REFLECTION OF THE
COMPANY'S CREDIT STATUS, AND, IN NO WAY, ARE A REFLECTION OF THE POTENTIAL
IMPACT OF THE FACTORS DISCUSSED ABOVE, OR ANY OTHER FACTORS, ON THE MARKET VALUE
OF THE INDEXED NOTES. ACCORDINGLY, PROSPECTIVE INVESTORS SHOULD CONSULT THEIR
OWN FINANCIAL AND LEGAL ADVISORS AS TO THE RISKS ENTAILED BY AN INVESTMENT IN
SUCH INDEXED NOTES AND THE SUITABILITY OF SUCH INDEXED NOTES IN LIGHT OF THEIR
PARTICULAR CIRCUMSTANCES.
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CERTAIN U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the principal U.S. federal income tax
consequences resulting from the beneficial ownership of Notes by certain
persons. This summary does not purport to consider all the possible U.S. federal
tax consequences of the purchase, ownership or disposition of the Notes and is
not intended to reflect the individual tax position of any beneficial owner. It
deals only with Notes denominated in U.S. dollars, Notes denominated in
currencies or composite currencies other than U.S. dollars ("Foreign Currency"),
and Foreign Currency in each case held as capital assets. Moreover, except as
expressly indicated, it addresses initial purchasers and does not address
beneficial owners that may be subject to special tax rules, such as banks,
insurance companies, dealers in securities or currencies, purchasers that hold
Notes (or Foreign Currency) as a hedge against currency risks or as part of a
straddle with other investments or as part of a "synthetic security" or other
integrated investment (including a "conversion transaction") comprised of a Note
and one or more other investments, or purchasers that have a "functional
currency" other than the U.S. dollar. Except to the extent discussed below under
"Non-U.S. Holders," this summary is not applicable to non-United States persons
not subject to U.S. federal income tax on their worldwide income. This summary
is based upon the U.S. federal tax laws and regulations as now in effect and as
currently interpreted and does not take into account possible changes in such
tax laws or such interpretations, any of which may be applied retroactively. It
does not include any description of the tax laws of any state, local or foreign
governments that may be applicable to the Notes or holders thereof, and it does
not discuss the tax treatment of Notes denominated in certain hyperinflationary
currencies or dual currency Notes. Persons considering the purchase of Notes
should consult their own tax advisors concerning the application of the U.S.
federal tax laws to their particular situations as well as any consequences to
them under the laws of any other taxing jurisdiction.
U.S. HOLDERS
Payments of Interest
In general, interest on a Note, whether payable in U.S. dollars or a
Foreign Currency (other than certain payments on a Discount Note, as defined and
described below under "Original Issue Discount"), will be taxable to a
beneficial owner who or which is (i) a citizen or resident of the United States,
(ii) a corporation created or organized under the laws of the United States or
any State thereof (including the District of Columbia) or (iii) a person
otherwise subject to United States federal income taxation on its worldwide
income (a "U.S. Holder") as ordinary income at the time it is received or
accrued, depending on the holder's method of accounting for tax purposes. If an
interest payment is denominated in or determined by reference to a Foreign
Currency, then special rules, described below under "Foreign Currency Notes,"
apply.
Original Issue Discount
The following discussion summarizes the United States federal income tax
consequences to U.S. Holders of Notes issued with original issue discount
("OID") for federal income tax purposes. U.S. Holders of a Note issued with OID
generally will be subject to special tax accounting rules provided in the
Internal Revenue Code of 1986, as amended (the "Code"). On February 2, 1994, the
Treasury Department published final regulations (the "OID Regulations"), which
expand and illustrate the rules provided by the Code. On December 16, 1994, the
Treasury Department proposed new regulations regarding the tax treatment of debt
instruments that provide for one or more contingent payments. The proposed
regulations would also modify the rules relating to variable rate debt
instruments. Subsequent versions of the proposed regulations or corresponding
final regulations may adopt positions that may apply to a Note and that may be
contrary to the positions discussed below. For this reason, purchasers of Notes
should carefully examine the Pricing Supplement and consult their own tax
advisers with respect to the current application of the OID rules to the Notes.
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Special rules apply to OID on a Discount Note that is denominated in
Foreign Currency. See "Foreign Currency Notes -- Foreign Currency Discount
Notes."
General. A Note will be treated as issued with OID (a "Discount Note") if
the excess of the Note's "stated redemption price at maturity" over its issue
price is greater than a de minimis amount (set forth in the Code and the OID
Regulations). Generally, the issue price of a Note (or any Note that is part of
an issue of Notes) will be the first price at which a substantial amount of
Notes that are part of such issue of Notes are sold (other than to underwriters,
placement agents or wholesalers). Under the OID Regulations, the "stated
redemption price at maturity" of a Note is the sum of all payments provided by
the Note that are not payments of "qualified stated interest." A "qualified
stated interest" payment includes any stated interest payment on a Note that is
unconditionally payable in cash or property (other than debt instruments of the
Company) at least annually at a single fixed rate (or at certain floating rates)
that appropriately takes into account the length of the interval between stated
interest payments. The applicable Pricing Supplement will state whether a
particular issue of Notes will constitute an issue of Discount Notes.
In general, if the excess of a Note's stated redemption price at maturity
over its issue price is de minimis, then such excess constitutes "de minimis
OID." Under the OID Regulations, unless a U.S. Holder makes the election
described below under "Election to Treat All Interest as Original Issue
Discount," such a Note will not be treated as issued with OID (in which case the
following paragraphs under "Original Issue Discount" will not apply) and a U.S.
Holder of such a Note will recognize capital gain with respect to such de
minimis OID as stated principal payments on the Note are made. The amount of
such gain with respect to each such payment will equal the product of the total
amount of the Note's de minimis OID and a fraction, the numerator of which is
the amount of the principal payment made and the denominator of which is the
stated principal amount of the Note.
The OID Regulations provide that a Note bearing interest at a floating rate
(a "Floating Rate Note") will bear qualified stated interest if the Floating
Rate Note provides for stated interest at: (1) one or more qualified floating
rates; (2) a single fixed rate and one or more qualified floating rates; (3) a
single objective rate, or (4) a single fixed rate and a single objective rate
that is a qualified inverse floating rate.
For this purpose, a variable interest rate is a qualified floating rate if
variations in the value of the rate can reasonably be expected to measure
contemporaneous variations in the cost of newly borrowed funds in the currency
in which the debt instrument is denominated. A variable rate is not qualified
stated interest if, among other things, the terms of the Note provide for a
maximum interest rate or a minimum interest rate that is reasonably expected as
of the issue date to cause the yield on the debt instrument to be significantly
less, in the case of a maximum rate, or significantly more, in the case of a
minimum rate, than the expected yield determined without the maximum or minimum
rate, as the case may be.
An objective rate is a rate that is determined using a single fixed formula
and that is based on (1) one or more qualified floating rates; (2) one or more
rates where each rate would be a qualified floating rate for a debt instrument
denominated in a currency other than the currency in which the debt instrument
is denominated; (3) the yield or change in the price of actively traded personal
property; or (4) a combination of the foregoing rates. An objective rate is a
qualified inverse floating rate if the rate is equal to a fixed rate minus a
qualified floating rate, and the variation in the rate can be reasonably
expected to inversely reflect contemporaneous variations in the cost of newly
borrowed funds. A variable rate of interest on a debt instrument is not an
objective rate if it is reasonably expected that the average value of the rate
during the first half of the instrument's term will be either significantly less
than or significantly greater than the average value of the rate during the
final half of the debt instrument's term. Unless specified in the applicable
Pricing Supplement, Floating Rate Notes will not be Discount Notes.
The Code and the OID Regulations require a U.S. Holder of a Discount Note
having a maturity of more than one year from its date of issue to include OID in
gross income, as it accrues economically on
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<PAGE> 23
a constant yield basis, without regard to the holder's method of accounting for
tax purposes and prior to the receipt of cash attributable to such income. In
addition, qualified stated interest is included in income under the U.S.
Holder's regular method of accounting.
The amount of OID includible in gross income by a U.S. Holder of a Discount
Note is the sum of the "daily portions" of OID with respect to the Discount Note
for each day during the taxable year in which the U.S. Holder holds such
Discount Note ("accrued OID"). The daily portion is determined by allocating to
each day in any "accrual period" a pro rata portion of the OID allocable to that
accrual period. Under the OID Regulations, accrual periods with respect to a
Note may be any set of periods (which may be of varying lengths) selected by the
U.S. Holder as long as (i) no accrual period is longer than one year and (ii)
each scheduled payment of interest or principal on the Note occurs on the first
day or final day of an accrual period.
The amount of OID allocable to an accrual period equals the excess of (a)
the product of the Discount Note's adjusted issue price at the beginning of the
accrual period and the Discount Note's yield to maturity (determined on the
basis of compounding at the close of each accrual period and properly adjusted
for the length of the accrual period) over (b) the sum of any payments of
qualified stated interest on the Discount Note allocable to the accrual period.
In the case of a Floating Rate Note, both the yield to maturity and the
qualified stated interest will generally be determined for these purposes as
though the Note will bear interest in all periods at a fixed rate equal to the
value of the rate as of the issue date. In the case of Floating Rate Notes using
an objective rate other than a qualified inverse floating rate, the yield to
maturity and the qualified stated interest will generally be determined as
though the Note will bear interest in all periods at a fixed rate equal to the
rate that reflects the yield that is reasonably expected for the Note.
(Additional rules may apply if interest on a Floating Rate Note is based on more
than one interest index.)
The "adjusted issue price" of a Discount Note at the beginning of the first
accrual period is the issue price. Thereafter, the adjusted issue price at the
beginning of any accrual period is (x) the sum of the issue price of such
Discount Note, the accrued OID for each prior accrual period (determined without
regard to the amortization of any acquisition premium or bond premium, which are
discussed below), and the amount of any qualified stated interest on the Note
that has accrued prior to the beginning of the accrual period but is not payable
until a later date, less (y) any prior payments on the Discount Note that were
not qualified stated interest payments. If a payment (other than a payment of
qualified stated interest) is made on the first day of an accrual period, then
the adjusted issue price at the beginning of such accrual period is reduced by
the amount of the payment. If a portion of the initial purchase price of a Note
is attributable to interest that accrued prior to the Note's issue date, the
first stated interest payment on the Note is to be made within one year of the
Note's issue date and such payment will equal or exceed the amount of
pre-issuance accrued interest, then the issue price will be decreased by the
amount of pre-issuance accrued interest, in which case a portion of the first
stated interest payment will be treated as a return of the excluded pre-issuance
accrued interest and not as an amount payable on the Note.
The OID Regulations contain certain special rules that generally allow any
reasonable method to be used in determining the amount of OID allocable to a
short initial accrual period (if all other accrual periods are of equal length)
and require that the amount of OID allocable to the final accrual period equal
the excess of the amount payable at the maturity of the Discount Note (other
than any payment of qualified stated interest) over the Discount Note's adjusted
issue price as of the beginning of such final accrual period. In addition, if an
interval between payments of qualified stated interest on a Discount Note
contains more than one accrual period, then the amount of qualified stated
interest payable at the end of such interval is allocated pro rata (on the basis
of their relative lengths) between the accrual periods contained in the
interval.
U.S. Holders of Discount Notes generally will have to include in income
increasingly greater amounts of OID over the life of the Notes.
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Acquisition Premium. A U.S. Holder that purchases a Discount Note at its
original issuance for an amount in excess of its issue price but less than its
stated redemption price at maturity (any such excess being "acquisition
premium"), and that does not make the election described below under "Election
To Treat All Interest as Original Issue Discount," reduces the daily portions of
OID by an amount equal to the amount which would be the daily portion for such
day (determined without regard to this paragraph) multiplied by a fraction, the
numerator of which is the excess of the U.S. Holder's purchase price for the
Note over the issue price, and the denominator of which is the excess of the sum
of all amounts payable on the Note after the purchase date, other than payments
of qualified stated interest, over the Note's issue price. Alternatively, a U.S.
Holder may elect to compute OID accruals as described under "Original Issue
Discount -- General" above, treating the U.S. Holder's purchase price as the
issue price.
Optional Redemption. If the Company has an option to redeem a Discount
Note, or the U.S. Holder has an option to cause a Discount Note to be
repurchased, prior to the Discount Note's stated maturity, such option will be
presumed to be exercised if, by utilizing any date on which such Discount Note
may be redeemed or repurchased as the maturity date and the amount payable on
such date in accordance with the terms of such Discount Note (the "redemption
price") as the stated redemption price at maturity, the yield on the Discount
Note would be (i) in the case of an option of the Company, lower than its yield
to stated maturity, or (ii) in the case of an option of the U.S. Holder, higher
than its yield to stated maturity. If such option is not in fact exercised when
presumed to be exercised, the Note would be treated solely for OID purposes as
if it were redeemed or repurchased, and a new Note were issued, on the presumed
exercise date for an amount equal to the Discount Note's adjusted issue price on
that date.
Short-Term Notes. Under the Code, special rules apply with respect to OID
on Notes that mature one year or less from the date of issuance ("Short-Term
Notes"). In general, a cash basis U.S. Holder of a Short-Term Note is not
required to include OID in income as it accrues for United States federal income
tax purposes unless it elects to do so. Accrual basis U.S. Holders and certain
other U.S. Holders, including banks, regulated investment companies, dealers in
securities and cash basis U.S. Holders who so elect, are required to include OID
in income as it accrues on Short-Term Notes on a straight-line basis or, at the
election of the U.S. Holder, under the constant yield method (based on daily
compounding). In the case of U.S. Holders not required and not electing to
include OID in income currently, any gain realized on the sale or retirement of
Short-Term Notes will be ordinary income to the extent of the OID accrued on a
straight-line basis (unless an election is made to accrue the original issue
discount under the constant yield method) through the date of sale or
retirement. U.S. Holders who are not required and do not elect to include OID on
Short-Term Notes in income as it accrues will be required to defer deductions
for interest on borrowings allocable to Short-Term Notes in an amount not
exceeding the deferred income until the deferred income is realized.
Any U.S. Holder of a Short-Term Note can elect to apply the rules in the
preceding paragraph taking into account the amount of "acquisition discount," if
any, with respect to the Note (rather than the OID with respect to such Note).
Acquisition discount is the excess of the stated redemption price at maturity of
the Short-Term Note over the U.S. Holder's purchase price therefor. Acquisition
discount will be treated as accruing on a ratable basis or, at the election of
the U.S. Holder, on a constant-yield basis.
For purposes of determining the amount of OID subject to these rules, the
OID Regulations provide that no interest payments on a Short-Term Note are
qualified stated interest, but instead such interest payments are included in
the Short-Term Note's stated redemption price at maturity. Actual receipt of
stated interest will be taxable to the extent of accrued OID at the time of
receipt.
Notes Purchased at a Premium
Under the Code, a U.S. Holder that purchases a Note for an amount in excess
of its stated redemption price at maturity will not be subject to the OID rules
and may elect to treat such excess as
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<PAGE> 25
"amortizable bond premium," in which case the amount of qualified stated
interest required to be included in the U.S. Holder's income each year with
respect to interest on the Note will be reduced by the amount of amortizable
bond premium allocable (based on the Note's yield to maturity) to such year. Any
election to amortize bond premium is applicable to all bonds (other than bonds
the interest on which is excludible from gross income) held by the U.S. Holder
at the beginning of the first taxable year to which the election applies or
thereafter acquired by the U.S. Holder, and may not be revoked without the
consent of the Internal Revenue Service ("IRS"). A U.S. Holder that does not
elect to amortize bond premium will generally be entitled to treat the premium
as capital loss when the Note matures. See also "Election to Treat All Interest
as Original Issue Discount" below.
Notes Purchased at a Market Discount
A Note, other than a Short-Term Note, will be treated as issued at a market
discount (a "Market Discount Note") if the amount for which a U.S. Holder
purchased the Note is less than the Note's issue price, subject to a de minimis
rule similar to the rule relating to de minimis OID described under "Original
Issue Discount -- General."
In general, any gain recognized on the maturity or disposition of a Market
Discount Note will be treated as ordinary income to the extent that such gain
does not exceed the accrued market discount on such Note. Alternatively, a U.S.
Holder of a Market Discount Note may elect to include market discount in income
currently over the life of the Market Discount Note. Such an election applies to
all debt instruments with market discount acquired by the electing U.S. Holder
on or after the first day of the first taxable year to which the election
applies and may not be revoked without the consent of the IRS.
Market discount accrues on a straight-line basis unless the U.S. Holder
elects to accrue such discount on a constant yield to maturity basis. Such an
election is applicable only to the Market Discount Note with respect to which it
is made and is irrevocable. A U.S. Holder of a Market Discount Note that does
not elect to include market discount in income currently generally will be
required to defer deductions for interest on borrowings allocable to such Note
in an amount not exceeding the accrued market discount on such Note until the
maturity or disposition of such Note.
The market discount rules do not apply to a Short-Term Note.
Election To Treat All Interest as Original Issue Discount
Any U.S. Holder may elect to include in gross income all interest that
accrues on a Note using the constant yield method described above under the
heading "Original Issue Discount -- General," with the modifications described
below. For purposes of this election, interest includes stated interest, OID, de
minimis OID, market discount acquisition discount, de minimis market discount
and unstated interest, as adjusted by any amortizable bond premium or
acquisition premium.
In applying the constant yield method to a Note with respect to which this
election has been made, the issue price of the Note will equal the electing U.S.
Holder's adjusted basis in the Note immediately after its acquisition, the issue
date of the Note will be the date of its acquisition by the electing U.S.
Holder, and no payments on the Note will be treated as payments of qualified
stated interest. This election is generally applicable only to the Note with
respect to which it is made and may not be revoked without the consent of the
IRS. If this election is made with respect to a Note with amortizable bond
premium, the electing U.S. Holder will be deemed to have elected to apply
amortizable bond premium against interest with respect to all debt instruments
with amortizable bond premium (other than debt instruments the interest on which
is excludible from gross income) held by such electing U.S. Holder as of the
beginning of the taxable year in which the election is made or any debt
instruments acquired thereafter. The deemed election with respect to amortizable
bond premium may not be revoked without the consent of the IRS.
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<PAGE> 26
If the election described above to apply the constant yield method to all
interest on a Note is made with respect to a Market Discount Note, as defined
above, then the electing U.S. Holder will be treated as having made the election
discussed above under "Notes Purchased at a Market Discount" to include market
discount in income currently over the life of all debt instruments held or
thereafter acquired by such U.S. Holder.
Purchase, Sale and Retirement of the Notes
General. A U.S. Holder's tax basis in a Note generally will equal its U.S.
dollar cost (which, in the case of a Note purchased with a Foreign Currency,
will be the U.S. dollar value of the purchase price on the date of purchase),
increased by the amount of any OID or market discount (or acquisition discount,
in the case of a Short Term Note) included in the U.S. Holder's income with
respect to the Note and the amount, if any, of income attributable to de minimis
OID included in the U.S. Holder's income with respect to the Note, and reduced
by the sum of (i) the amount of any payments that are not qualified stated
interest payments, and (ii) the amount of any amortizable bond premium applied
to reduce interest on the Note. A U.S. Holder generally will recognize gain or
loss on the sale or retirement of a Note equal to the difference between the
amount realized on the sale or retirement and the U.S. Holder's tax basis in the
Note. The amount realized on a sale or retirement for an amount in Foreign
Currency will be the U.S. dollar value of such amount on the date of sale or
retirement. Except to the extent described above under "Original Issue
Discount -- Short Term Notes" or "Notes Purchased at a Market Discount" or below
under "Foreign Currency Notes -- Exchange Gain or Loss," and except to the
extent attributable to accrued but unpaid interest, gain or loss recognized on
the sale or retirement of a Note will be capital gain or loss and will be
long-term capital gain or loss if the Note was held for more than one year.
Foreign Currency Notes
Interest Payments. If an interest payment is denominated in or determined
by reference to a Foreign Currency, the amount of income recognized by a cash
basis U.S. Holder will be the U.S. dollar value of the interest payment, based
on the exchange rate in effect on the date of receipt, regardless of whether the
payment is in fact converted into U.S. dollars. Accrual basis U.S. Holders may
determine the amount of income recognized with respect to such interest payment
in accordance with either of two methods. Under the first method, the amount of
income recognized will be based on the average exchange rate in effect during
the interest accrual period (or, with respect to an accrual period that spans
two taxable years, the partial period within the taxable year). Upon receipt of
an interest payment (including a payment attributable to accrued but unpaid
interest upon the sale or retirement of a Note) determined by reference to a
Foreign Currency, an accrual basis U.S. Holder will recognize ordinary income or
loss measured by the difference between such average exchange rate and the
exchange rate in effect on the date of receipt, regardless of whether the
payment is in fact converted into U.S. dollars. Under the second method, an
accrual basis U.S. Holder may elect to translate interest income into U.S.
dollars at the spot exchange rate in effect on the last day of the accrual
period or, in the case of an accrual period that spans two taxable years, at the
exchange rate in effect on the last day of the partial period within the taxable
year. Additionally, if a payment of interest is actually received within 5
business days of the last day of the accrual period or taxable year, an accrual
basis U.S. Holder applying the second method may instead translate such accrued
interest into U.S. dollars at the spot exchange rate in effect on the day of
actual receipt (in which case no exchange gain or loss will result). Any
election to apply the second method will apply to all debt instruments held by
the U.S. Holder at the beginning of the first taxable year to which the election
applies or thereafter acquired by the U.S. Holder and may not be revoked without
the consent of the IRS.
Exchange of Amounts in Other than U.S. Dollars. Foreign Currency received
as interest on a Note or on the sale or retirement of a Note will have a tax
basis equal to its U.S. dollar value at the time such interest is received or at
the time of such sale or retirement, as the case may be. Foreign Currency that
is purchased will generally have a tax basis equal to the U.S. dollar value of
the Foreign Currency on
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<PAGE> 27
the date of purchase. Any gain or loss recognized on a sale or other disposition
of a Foreign Currency (including its use to purchase Notes or upon exchange for
U.S. dollars) will be ordinary income or loss.
Foreign Currency Discount Notes. OID for any accrual period on a Discount
Note that is denominated in a Foreign Currency will be determined in the Foreign
Currency and then translated into U.S. dollars in the same manner as stated
interest accrued by an accrual basis U.S. Holder. Upon receipt of an amount
attributable to original issue discount (whether in connection with a payment of
interest or the sale or retirement of a Note), a U.S. Holder may recognize
ordinary income or loss.
Amortizable Bond Premium. In the case of a Note that is denominated in a
Foreign Currency, bond premium will be computed in units of Foreign Currency,
and amortizable bond premium will reduce interest income in units of the Foreign
Currency. At the time amortized bond premium offsets interest income, a U.S.
Holder may realize ordinary income or loss, measured by the difference between
exchange rates at that time and at the time of the acquisition of the Notes.
Market Discount. Market discount is determined in units of the Foreign
Currency. Accrued market discount that is required to be taken into account on
the maturity or upon disposition of a Note is translated into U.S. dollars at
the exchange rate on the maturity or the disposition date, as the case may be
(and no part is treated as exchange gain or loss). Accrued market discount
currently includible in income by an electing U.S. Holder is translated into
U.S. dollars at the average exchange rate for the accrual period (or the partial
accrual period during which the U.S. Holder held the Note), and exchange gain or
loss is determined on maturity or disposition of the Note (as the case may be)
in the manner described above under "Foreign Currency Notes -- Interest
Payments" with respect to the computation of exchange gain or loss on the
receipt of accrued interest by an accrual method holder.
Exchange Gain or Loss. Gain or loss recognized by a U.S. Holder on the
sale or retirement of a Note that is attributable to changes in exchange rates
will be treated as ordinary income or loss. However, exchange gain or loss is
taken into account only to the extent of total gain or loss realized on the
transaction.
Indexed Notes
The applicable Pricing Supplement will contain a discussion of any special
United States federal income tax rules with respect to Currency Indexed Notes,
Commodity Indexed Notes or other indexed Notes.
NON-U.S. HOLDERS
Subject to the discussion of backup withholding below, payments of
principal (and premium, if any) and interest (including OID) by the Company or
any agent of the Company (acting in its capacity as such) to any holder of a
Note that is not a U.S. Holder (a "Non-U.S. Holder") will not be subject to U.S.
federal withholding tax, provided, in the case of interest (including OID), that
(i) the Non-U.S. Holder does not actually or constructively own 10% or more of
the total combined voting power of all classes of stock of the Company entitled
to vote, (ii) the Non-U.S. Holder is not a controlled foreign corporation for
U.S. tax purposes that is related to the Company (directly or indirectly)
through stock ownership and (iii) either (A) the Non-U.S. Holder certifies to
the Company or its agent under penalties of perjury that it is not a United
States person and provides its name and address or (B) a securities clearing
organization, bank or other financial institution that holds customers'
securities in the ordinary course of its trade or business (a "financial
institution") and holds the Note certifies to the Company or its agent under
penalties of perjury that such statement has been received from the Non-U.S.
Holder by it or by another financial institution and furnishes the payor with a
copy thereof. A Non-U.S. Holder of a Note providing for payments of contingent
interest within the meaning of Section 871(h) of the Code, will not, however, be
exempt from U.S. federal withholding tax with respect to payments of such
contingent interest. The applicable Pricing Supplement will contain a
description of U.S. federal withholding tax consequences to Non-U.S. Holders of
a purchase of a Note providing for payments of such contingent interest.
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<PAGE> 28
If a Non-U.S. Holder is engaged in a trade or business in the United States
and interest (including OID) on the Note is effectively connected with the
conduct of such trade or business, the Non-U.S. Holder, although exempt from the
withholding tax discussed in the preceding paragraph (provided that such holder
furnishes a properly executed IRS Form 4224 on or before any payment date to
claim such exemption), may be subject to U.S. federal income tax on such
interest (or OID) in the same manner as if it were a U.S. Holder. In addition,
if the Non-U.S. Holder is a foreign corporation, it may be subject to a branch
profits tax equal to 30% of its effectively connected earnings and profits for
the taxable year, subject to certain adjustments. For purposes of the branch
profits tax, interest (including OID) on a Note will be included in the earnings
and profits of such holder if such interest (or OID) is effectively connected
with the conduct by such holder of a trade or business in the United States. In
lieu of the certificate described in the preceding paragraph, such a holder must
provide the payor with a properly executed IRS Form 4224 to claim an exemption
from U.S. federal withholding tax.
Any capital gain, market discount or exchange gain realized on the sale,
exchange, retirement or other disposition of a Note by a Non-U.S. Holder will
not be subject to U.S. federal income or withholding taxes if (i) such gain is
not effectively connected with a U.S. trade or business of the Non-U.S. Holder
and (ii) in the case of an individual, such Non-U.S. Holder (A) is not present
in the United States for 183 days or more in the taxable year of the sale,
exchange, retirement or other disposition or (B) does not have a tax home (as
defined in Section 911(d)(3) of the Code) in the United States in the taxable
year of the sale, exchange, retirement or other disposition and the gain is not
attributable to an office or other fixed place of business maintained by such
individual in the United States.
Notes held by an individual who is neither a citizen nor a resident of the
United States for U.S. federal tax purposes at the time of such individual's
death will not be subject to U.S. federal estate tax, provided that the income
from such Notes was not or would not have been effectively connected with a U.S.
trade or business of such individual and that such individual qualified for the
exemption from U.S. federal withholding tax (without regard to the certification
requirements) described above.
PURCHASERS OF NOTES THAT ARE NON-U.S. HOLDERS SHOULD CONSULT THEIR OWN TAX
ADVISORS WITH RESPECT TO THE POSSIBLE APPLICABILITY OF UNITED STATES WITHHOLDING
AND OTHER TAXES UPON INCOME REALIZED IN RESPECT OF THE NOTES.
INFORMATION REPORTING AND BACKUP WITHHOLDING
For each calendar year in which the Notes are outstanding, the Company is
required to provide the IRS with certain information, including the holder's
name, address and taxpayer identification number (either the holder's Social
Security number or its employer identification number, as the case may be), the
aggregate amount of principal and interest paid (including OID, if any) to that
holder during the calendar year and the amount of tax withheld, if any. This
obligation, however, does not apply with respect to certain U.S. Holders,
including corporations, tax-exempt organizations, qualified pension and profit
sharing trusts and individual retirement accounts.
In the event that a U.S. Holder subject to the reporting requirements
described above fails to supply its correct taxpayer identification number in
the manner required by applicable law or underreports its tax liability, the
Company, its agents or paying agents or a broker may be required to "backup"
withhold a tax equal to 31% of each payment of interest (including OID) and
principal (and premium, if any) on the Notes. This backup withholding is not an
additional tax and may be credited against the U.S. Holder's U.S. federal income
tax liability, provided that the required information is furnished to the IRS.
Under current Treasury Regulations, backup withholding and information
reporting will not apply to payments made by the Company or any agent thereof
(in its capacity as such) to a Non-U.S. Holder of a Note if such holder has
provided the required certification that it is not a United States person as set
forth in clause (iii) in the first paragraph under "Non-U.S. Holders" above, or
has otherwise established an exemption (provided that neither the Company nor
its agent has actual knowledge that the holder is a United States person or that
the conditions of any exemption are not in fact satisfied).
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<PAGE> 29
Payment of the proceeds from the sale of a Note to or through a foreign
office of a broker will not be subject to information reporting or backup
withholding, except that if the broker is a United States person, a controlled
foreign corporation for United States tax purposes or a foreign person 50
percent or more of whose gross income from all sources for the three-year period
ending with the close of its taxable year preceding the payment was effectively
connected with a U.S. trade or business, information reporting may apply to such
payments. Payment of the proceeds from a sale of a Note to or through the U.S.
office of a broker is subject to information reporting and backup withholding
unless the holder or beneficial owner certifies as to its taxpayer
identification number or otherwise establishes an exemption from information
reporting and backup withholding.
PLAN OF DISTRIBUTION
The Notes are being offered on a continuing basis by the Company through
each of Lehman Brothers, Lehman Brothers Inc. (including its affiliate Lehman
Government Securities Inc.) and Goldman, Sachs & Co., as an agent (each an
"Agent" and collectively the "Agents"), each of which has agreed to use its
reasonable best efforts to solicit offers to purchase the Notes. The Company
will pay each Agent a commission, in the form of a discount, ranging from .125%
to .625% of the principal amount of each Note, depending upon the time until its
Maturity Date, sold through such Agent. The Company may use additional agents to
solicit offers to purchase Notes as the Company may designate from time to time
on terms substantially identical to those set forth above. Such other agents, if
any, will be named in the applicable Pricing Supplement. The Company also may
sell Notes to any Agent, acting as principal, at a discount to be agreed upon at
the time of sale, for resale to one or more investors or to one or more
broker-dealers (acting as principal for purposes of resale) at varying prices
related to prevailing market prices at the time of resale, as determined by such
Agent, or, if so agreed, at a fixed public offering price. The Notes may also be
sold by the Company directly to purchasers. No commission will be payable to the
Agents on Notes sold directly to purchasers by the Company.
The Company will have the sole right to accept offers to purchase Notes and
may reject any proposed purchase of Notes in whole or in part whether placed
directly with the Company or through an Agent. Each Agent will have the right,
in its discretion reasonably exercised, to reject any offer to purchase Notes
received by it in whole or in part.
Payment of the purchase price of the Notes will be required to be made in
funds immediately available in The City of New York.
The Agents may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933, as amended (the "Act"). The Company has agreed to
indemnify each Agent against certain liabilities, including liabilities under
the Act. The Company has agreed to reimburse the Agents for certain expenses,
including fees and disbursements of counsel to the Agents. The Agents may sell
to or through dealers who may resell to investors. The Agents may pay all or
part of their commission to such dealers. Such dealers may be deemed to be
"underwriters" within the meaning of the Act.
No Note will have an established trading market when issued. The Notes will
not be listed on any securities exchange. The Company has been advised by each
of the Agents that it may from time to time purchase and sell Notes in the
secondary market, but that it is not obligated to do so. No assurance can be
given that there will be a secondary market for the Notes.
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<PAGE> 30
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy
nor shall there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED JANUARY 19, 1995
PROSPECTUS
AIR PRODUCTS AND CHEMICALS, INC.
DEBT SECURITIES
Air Products and Chemicals, Inc. (the "Company"), directly, through agents
designated from time to time, or through dealers or underwriters also to be
designated, may sell from time to time after the date of this Prospectus up to
$400,000,000 aggregate principal amount or the equivalent thereof in other
currencies or currency units of its debt securities (the "Securities"), in one
or more series, on terms to be determined at the time of sale. The specific
designation, aggregate principal amount, authorized denominations, currency,
maturity, interest rate or method for its calculation, if any, interest payment
dates, purchase price, any terms for redemption, repayment or defeasance or
other specific terms, any listing on a securities exchange, sinking fund
provisions, if any, and the agents, dealers or underwriters, if any, in
connection with the sale of the Securities in respect of which this Prospectus
is being delivered are set forth in the accompanying Prospectus Supplement
("Prospectus Supplement"), and Pricing Supplement ("Pricing Supplement"), if
any, together with the terms of offering of the Securities. The Company reserves
the sole right to accept and, together with its agents from time to time, to
reject in whole or in part any proposed purchase of Securities to be made
directly or through agents.
------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------
If an agent of the Company or a dealer or underwriter is involved in the
sale of the Securities in respect of which this Prospectus is being delivered,
the agent's commission, dealer's purchase price or underwriter's discount is set
forth in, or may be calculated from, the Prospectus Supplement and the net
proceeds to the Company from such sale will be the purchase price of such
Securities less such commission in the case of an agent, the purchase price of
such Securities in the case of a dealer or the public offering price less such
discount in the case of an underwriter, and less, in each case, the other
attributable issuance and distribution expenses. The aggregate proceeds to the
Company from all the Securities will be the purchase price of Securities sold
less the aggregate of agents' commissions and underwriters' discounts and other
expenses of issuance and distribution. See "Plan of Distribution" for possible
indemnification arrangements for the agents, dealers and underwriters.
January , 1995
<PAGE> 31
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports, proxy statements
and other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information, including
the documents incorporated herein by reference, can be inspected and copied at
the office of the Commission at Room 1024 (Public Reference Room), 450 Fifth
Street, N.W., Washington, D.C. 20549, as well as at the Regional Offices of the
Commission at Northwestern Atrium Center, 500 West Madison Street (Suite 1400),
Chicago, Illinois 60661 and 7 World Trade Center, 13th Floor, New York, New York
10048. Copies of such material can be obtained by mail from the Public Reference
Room of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. In addition, such reports, proxy statements and other
information concerning the Company can be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York, and the Pacific
Stock Exchange, 115 Sansome Street, San Francisco, California.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1994, filed pursuant to Section 13 of the Securities Exchange Act
of 1934.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 subsequent to the date of this
Prospectus and prior to the termination of the offering of the Securities shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents. Requests should be
directed to the Corporate Secretary's Office, Air Products and Chemicals, Inc.,
7201 Hamilton Boulevard, Allentown, Pennsylvania 18195-1501, telephone: (610)
481-4911.
THE COMPANY
The Company, through internal development and by acquisitions, has
established an internationally recognized industrial gas and related industrial
process equipment business, and developed strong positions as a producer of
certain chemicals. In addition, the Company has developed an environmental and
energy business principally through various partnerships.
The industrial gases business segment recovers and distributes industrial
gases such as oxygen, nitrogen, argon and hydrogen and a variety of medical and
specialty gases. The chemicals business segment produces and markets specialty
chemicals and chemical intermediates. The environmental and energy business is
principally composed of partnerships in waste-to-energy, cogeneration and flue-
gas desulfurization. The equipment and technology business segment supplies
cryogenic and other process equipment and related engineering services.
The Company was incorporated in 1961 under Delaware law and is the
successor to a Michigan corporation organized in 1940. Its principal executive
offices are located at 7201 Hamilton Boulevard, Allentown, Pennsylvania
18195-1501, telephone (610) 481-4911. Except as otherwise indicated by the
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<PAGE> 32
context, the term "Company" as used herein means Air Products and Chemicals,
Inc. and its consolidated subsidiaries.
RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
(UNAUDITED)
YEAR ENDED SEPTEMBER 30,
- -----------------------------------------
1990 1991 1992 1993 1994
- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C>
3.2 3.2 3.9 3.2 3.4
</TABLE>
For the purpose of determining the unaudited ratios of earnings to fixed
charges, earnings represent income (before extraordinary item and cumulative
effect of accounting changes) before income taxes, fixed charges (less interest
capitalized), amortization of capitalized interest and undistributed earnings of
less-than-fifty-percent owned affiliates. Fixed charges consist of interest on
all indebtedness (including capital lease obligations), capitalized interest,
amortization of debt discount premium and expense and the portion of rent
charges considered to be representative of the interest factor.
USE OF PROCEEDS
The Company currently intends to apply the net proceeds from the sale of
the Securities to its general funds to be used for general corporate purposes.
Such corporate purposes may include the refunding of maturing debt, the
repurchase of shares of the Company's Common Stock and acquisitions, including
the acquisition of outstanding shares of a Spanish industrial gas company,
Sociedad Espanola de Carburos Metalicos, S.A., which are tendered under tender
offers expected to be made in September 1995 and September 1996. Pending such
application, all or a portion of the net proceeds may be invested in short-term
money market instruments. The precise amount and timing of the use of the
proceeds will depend upon future requirements and the availability of other
funds to the Company.
DESCRIPTION OF SECURITIES
The Securities offered hereby will be issuable in one or more series under
an Indenture dated as of January 10, 1995 (the "Indenture"), entered into
between the Company and First Fidelity Bank, National Association, as Trustee
(the "Trustee"). The following statements are subject to the detailed provisions
of the Indenture, a copy of which is filed as an exhibit to the Registration
Statement. Wherever references are made to particular provisions of the
Indenture, such provisions are incorporated by reference as a part of the
statements made and such statements are qualified in their entirety by such
reference. Certain defined terms are capitalized. Section references in italics
are to the Indenture.
GENERAL
The Indenture provides that the aggregate principal amount of Securities
which may be issued under the Indenture is unlimited. Reference is made to the
Prospectus Supplement for the following terms of the Securities in respect of
which this Prospectus is being delivered: (1) the designation, aggregate
principal amount and authorized denominations of such Securities; (2) the
percentage of their principal amount at which such Securities will be issued;
(3) the currency or currency unit of payment; (4) the date on which such
Securities will mature; (5) the rate or rates per annum, if any, at which such
Securities will bear interest or the method for calculating such rate; (6) the
times at which such interest, if any, will be payable; (7) provisions for a
sinking fund, if any; (8) whether such Securities are to be issued in book-entry
form, and, if so, the identity of the depositary and information with respect to
book-entry procedures; and (9) any redemption, repayment or defeasance terms or
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<PAGE> 33
other specific terms. Principal and interest, if any, will be payable, and the
Securities offered hereby will be transferable or exchangeable, as provided
therein.
The Securities will be unsecured and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company.
One or more series of the Securities may be issued as discounted Securities
(bearing no interest or interest at a rate which at the time of issuance is
below market rates) to be sold at a substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such series of discounted Securities will be
described in the Prospectus Supplement relating thereto.
Special federal income tax and other considerations relating to Securities
denominated in foreign currencies or units of two or more foreign currencies
will be described in the applicable Prospectus Supplement.
The Securities offered hereby will be issued only in fully registered form
without coupons. No service charge will be made for any transfer or exchange of
the Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Section
2.8)
CERTAIN COVENANTS OF THE COMPANY
Limitations on Liens -- Subject to the exceptions set forth below under
"Exempted Indebtedness," the Company covenants that it will not create or
assume, nor will it permit any Restricted Subsidiary (as hereinafter defined) to
create or assume, any mortgage, security interest, pledge or lien (collectively
referred to herein as "lien") of or upon any Principal Property (as hereinafter
defined), or any underlying real estate of such property, or shares of capital
stock or indebtedness of any Restricted Subsidiary, whether owned at the date of
the Indenture or thereafter acquired, without equally and ratably securing the
outstanding Securities. This restriction will not apply to certain permitted
liens, including the following: (1) liens on any Principal Property which are
created or assumed contemporaneously with, or within 120 days after (or in the
case of any such Principal Property which is being financed on the basis of
long-term contracts or similar financing arrangements for which a firm
commitment is made by one or more banks, insurance companies or other lenders or
investors (not including the Company or any Restricted Subsidiary), then within
360 days after), the completion of the acquisition, construction or improvement
of such Principal Property to secure or provide for the payment of any part of
the purchase price of such property or the cost of such construction or
improvement, or liens on any Principal Property existing at the time of
acquisition thereof; (2) liens on property or shares of capital stock or
indebtedness of a corporation existing at the time such corporation is merged
into or consolidated with the Company or a Restricted Subsidiary or at the time
of a sale, lease or other disposition of the properties of a corporation
substantially as an entirety to the Company or a Restricted Subsidiary; (3)
liens on property or shares of capital stock or indebtedness of a corporation
existing at the time such corporation becomes a Restricted Subsidiary; (4) liens
to secure indebtedness of a Restricted Subsidiary to the Company or to another
Restricted Subsidiary, but only so long as such indebtedness is held by the
Company or a Restricted Subsidiary; (5) liens in favor of the United States of
America or any State thereof, or any department, agency or political subdivision
of the United States of America or any State thereof, to secure certain payments
pursuant to any contract or statute, including liens to secure indebtedness of
the pollution control or industrial revenue bond type, or to secure indebtedness
incurred for the purpose of financing all or any part of the purchase price or
cost of constructing or improving property subject to such liens; (6) liens in
favor of any customer arising in respect of certain payments made by or on
behalf of such customer for goods produced for or services rendered to such
customer in the ordinary course of business not exceeding the amount of such
payments; (7) liens to extend, renew or replace in whole or in part any lien
referred to in the foregoing clauses (1) to (6), or in this clause (7), or any
lien created prior to and existing on the date of the Indenture, provided that
the principal amount of indebtedness secured
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<PAGE> 34
thereby shall not exceed the principal amount of indebtedness so secured at the
time of such extension, renewal or replacement, and that such extension, renewal
or replacement shall be limited to all or a part of the property subject to the
lien so extended, renewed or replaced (plus improvements on such property); and
(8) certain statutory liens, liens for taxes and certain other liens. (Section
3.6)
Limitations on Sale and Lease-Back Transactions -- Subject to the
exceptions set forth below under "Exempted Indebtedness," sale and lease-back
transactions by the Company or any Restricted Subsidiary of any Principal
Property which has been owned and operated by the Company or a Restricted
Subsidiary for more than 120 days are prohibited unless (1) the property
involved is property which could be the subject of a lien without equally and
ratably securing the Securities; (2) an amount equal to the Attributable Debt
(as hereinafter defined) of any such sale and lease-back transaction is applied
to the acquisition of another Principal Property of equal or greater fair market
value or to retirement of indebtedness for borrowed money (including the
Securities) which by its terms matures on or is renewable at the option of the
obligor to a date more than twelve months after the creation of such
indebtedness; or (3) the lease involved is for a term (including renewals) of
not more than three years. (Section 3.7)
Exempted Indebtedness -- The Company or a Restricted Subsidiary may create
or assume liens and enter into sale and lease-back transactions, notwithstanding
the limitations outlined above, provided that at the time thereof and after
giving effect thereto the aggregate amount of indebtedness secured by all such
liens and Attributable Debt of all such sale and lease-back transactions
outstanding shall not exceed 5% of Consolidated Net Tangible Assets (as
hereinafter defined). (Section 3.8)
Limitations on Mergers, Consolidations and Sales of Assets -- If, upon any
consolidation or merger of the Company with or into any other corporation, or
upon any sale, conveyance or lease of substantially all its properties, any
Principal Property would thereupon become subject to any lien, the Company,
prior to such event, will secure the Securities equally and ratably with any
other obligations of the Company then entitled thereto by a direct lien on all
such Principal Property prior to all other liens other than any theretofore
existing thereon. (Section 3.9)
Certain Definitions -- The term "Subsidiary" means any corporation of which
at least a majority of all outstanding voting stock is at the time owned by the
Company or by one or more Subsidiaries of the Company. The term "Restricted
Subsidiary" means any Subsidiary (a) substantially all of the property of which
is located, or substantially all of the business of which is carried on, within
the United States and (b) which owns or leases a Principal Property. The term
"Principal Property" means any manufacturing plant, research facility or
warehouse owned or leased by the Company or any Subsidiary which is located
within the United States and has a net book value exceeding the greater of
$5,000,000 and 1% of shareholders' equity of the Company and its consolidated
Subsidiaries, excluding any property which the Board of Directors by resolution
declares is not of material importance to the total business of the Company and
its Subsidiaries as an entirety. The term "Attributable Debt" means the present
value (discounted as provided in the Indenture) of the obligation of a lessee
for required rental payments for the remaining term of any lease. The term
"Consolidated Net Tangible Assets" means at any time the total of all assets
appearing on the most recent consolidated balance sheet of the Company and its
consolidated Subsidiaries, prepared in accordance with generally accepted
accounting principles, at their net book values (after deducting related
depreciation, depletion, amortization and all other valuation reserves which, in
accordance with such principles, are set aside in connection with the business
conducted), but excluding goodwill, trademarks, patents, unamortized debt
discount and all other like segregated intangible assets, and amounts on the
asset side of such balance sheet for capital stock of the Company, all as
determined in accordance with such principles, less Consolidated Current
Liabilities. The term "Consolidated Current Liabilities" means the aggregate of
the current liabilities of the Company and its consolidated Subsidiaries
appearing on the consolidated balance sheet of the Company and its consolidated
Subsidiaries, all as determined in accordance with generally accepted accounting
principles. (Section 1.1)
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<PAGE> 35
EVENTS OF DEFAULT, WAIVER AND NOTICE
As to any series of Securities, an Event of Default is defined in the
Indenture as being any one of the following events and such events as may be
established with respect to the Securities of such series in any applicable
Pricing Supplement: (a) default for 30 days in the payment of any interest on
the Securities of such series; (b) default in the payment of principal and
premium, if any, on the Securities of such series when due either at maturity,
upon redemption, by declaration or otherwise; (c) default in the payment of any
sinking fund installment on the Securities of such series; (d) default by the
Company in the performance of any other of the covenants or agreements in the
Indenture (other than those set forth exclusively in the terms of any series of
Securities) which shall not have been remedied for a period of 90 days after
appropriate notice, as specified in the Indenture; or (e) certain events of
bankruptcy, insolvency and reorganization of the Company. (Section 5.1) No Event
of Default with respect to any particular series of Securities necessarily
constitutes an Event of Default with respect to any other series of Securities.
The Indenture provides that the Trustee may withhold notice to the holders of
Securities of any series of any default (except in payment of principal of or
interest on such Securities or in the making of any sinking fund payment with
respect to such Securities) if the Trustee considers it in the interest of the
holders of Securities of such series to do so. (Section 5.11)
The Indenture provides that: (1) if an Event of Default described in clause
(a), (b) or (c) above or established with respect to the Securities of any
series shall have occurred and be continuing, either the Trustee or the holders
of 25% in aggregate principal amount of the Securities of such series then
outstanding may declare the principal (or, in the case of discounted Securities,
the amount specified in the terms thereof) of all such Securities to be due and
payable immediately and (2) if an Event of Default described in clause (d) or
(e) above shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of all Securities
then outstanding may declare the principal (or, in the case of discounted
Securities, the amount specified in the terms thereof) of all Securities to be
due and payable immediately, but upon certain conditions such declarations may
be annulled and past defaults (except for defaults in the payment of principal
of, or premium or interest, if any, on, such Securities) may be waived by the
holders of a majority in aggregate principal amount of the Securities of such
series (or of all series as the case may be) then outstanding. (Section 5.1 and
Section 5.10)
The holders of a majority in aggregate principal amount of the Securities
of each series affected (with each series voting as a separate class) and then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under the
Indenture, subject to certain limitations specified in the Indenture, provided
that the holders of Securities shall have offered to the Trustee reasonable
indemnity against costs, expenses and liabilities. (Section 5.9 and Section
6.2(d)) The Indenture requires the annual filing by the Company with the Trustee
of a certificate as to the absence of certain defaults under the Indenture.
(Section 3.5)
Other than the restrictions on liens and sale and lease-back transactions
described above, the Indenture and the Securities do not contain any covenants
or other provisions designed to afford holders of the Securities protection in
the event of a highly leveraged transaction involving the Company or any
Subsidiary, including without limitation any takeover, recapitalization or other
restructuring that may result in a sudden and significant decline in credit
rating.
MODIFICATION OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in aggregate principal
amount of the Securities of all series affected by such modification at the time
outstanding (voting as one class), to modify the Indenture or any supplemental
indenture or the rights of the holders of the Securities, provided that no such
modification shall (i) extend the final maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable
6
<PAGE> 36
upon redemption thereof, or reduce the amount of the principal of a discounted
Security due and payable upon acceleration of the maturity thereof or provable
in bankruptcy, or impair or affect the right of a holder to institute suit for
the payment thereof or the right of repayment, if any, at the option of the
holder thereof, without the consent of the holder of each Security so affected,
or (ii) reduce the aforesaid percentage of Securities of any series, the consent
of the holders of which is required for any such modification, without the
consent of the holder of each Security so affected. (Section 8.2)
GLOBAL SECURITIES
The Securities of a series may be issued in the form of a global security
which is deposited with and registered in the name of the depositary (or a
nominee of the depositary) specified in the accompanying Prospectus Supplement.
So long as the depositary for a global security, or its nominee, is the
registered owner of the global security, the depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the Securities
represented by such global security for all purposes under the Indenture. Except
as provided in the Indenture, owners of beneficial interests in Securities
represented by a global security will not (a) be entitled to have such
Securities registered in their names, (b) receive or be entitled to receive
physical delivery of certificates representing such Securities in definitive
form, (c) be considered the owners or holders thereof under the Indenture and
(d) have any rights under the Indenture with respect to such global security
(Section 2.14). The Company, in its sole discretion, may at any time determine
that any series of Securities issued or issuable in the form of a global
security shall no longer be represented by such global security and such global
security shall be exchanged for securities in definitive form pursuant to the
Indenture (Section 2.14).
Upon the issuance of a global security, the depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
such global security to the accounts of participants in the depositary.
Ownership of beneficial interests in a global security will be shown on, and the
transfer of that ownership will be effected only through, records maintained by
the depositary (with respect to interests of participants in the depositary), or
by participants in the depositary or persons that may hold interests through
such participants (with respect to persons other than participants in the
depositary). Ownership of beneficial interests in a global security will be
limited to participants or persons that hold interests through participants.
CONCERNING THE TRUSTEE
First Fidelity Bank, National Association, the Trustee under the Indenture,
also performs certain cash management services for the Company in the normal
course of business.
DEFEASANCE OF THE INDENTURE AND SECURITIES
The Company at any time may satisfy its obligations with respect to
payments of principal of, premium, if any, and interest, if any, on, any
Security or Securities of any series by depositing in trust with the Trustee (a)
money (in such currency in which such securities are payable) or (b), in the
case of Securities denominated in U.S. dollars, U.S. Government Obligations (as
defined in the Indenture) or, in the case of Securities denominated in a foreign
currency, Foreign Government Securities (as defined in the Indenture) or a
combination of (a) and (b) sufficient to make such payments when due. If such
deposit is sufficient to make all payments of (1) interest, if any, on such
Securities prior to and on their redemption or maturity, as the case may be, and
(2) principal of, and premium, if any, on such Securities when due upon
redemption or at maturity, as the case may be, all the obligations of the
Company with respect to such Securities and the Indenture insofar as it relates
to such Securities will be discharged and terminated (except as to the Company's
obligations to compensate, reimburse and indemnify the Trustee pursuant to the
Indenture). In the event of any such defeasance, holders of such Securities
would be able to look only to such trust fund for payment of principal and
premium, if any, and interest, if any, on Securities of such series until
maturity or redemption. (Article Ten)
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<PAGE> 37
For federal income tax purposes, there is a substantial risk that any
deposit of cash and/or U.S. Government Obligations or Foreign Government
Securities with respect to which the Company shall have elected to satisfy and
fully discharge its obligations with respect to any series of Securities could
be treated as a taxable exchange of such Securities for interests in the trust
(or, alternatively, for an instrument representing indebtedness of the trust).
In that event, a holder could be required to recognize taxable gain or loss at
the time of such defeasance as if the Securities had been sold for an amount
equal to the sum of the amount of money and the fair market value of the U.S.
Government Obligations or Foreign Government Securities held in the defeasance
trust (or, alternatively, the value of the instrument). Thereafter, a holder
might be required to include in income the holder's share of the income, gain
and loss of the trust (or, alternatively, the trust might be considered a
separate taxable entity with respect to such items and with respect to the debt
instrument, in which case a holder might also be taxable on original issue
discount as well as interest on the instrument). Purchasers of the Securities
should consult their own advisors with respect to the more detailed tax
consequences to them of such deposit and discharge, including the applicability
and effect of tax laws other than federal income tax law.
PLAN OF DISTRIBUTION
The Company may sell the Securities in any of four ways: (i) directly to
purchasers; (ii) through agents; (iii) through underwriters; or (iv) through
dealers.
Offers to purchase Securities may be solicited directly by the Company or
by agents designated by the Company from time to time. Any such agent, who may
be deemed to be an underwriter as that term is defined in the Securities Act of
1933, involved in the offer or sale of the Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth, in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement, any such agent will be acting
on a best efforts basis for the period of its appointment. Agents may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting, purchase or agency agreement with such
underwriters at the time of sale to them and the names of the underwriters and
the terms of the transaction will be set forth in the Prospectus Supplement,
which will be used by the underwriters to make resales of the Securities in
respect of which this Prospectus is delivered to the public.
If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to such
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale.
Agents, underwriters and dealers may be entitled under the relevant
agreements to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act of 1933.
If so indicated in the Prospectus Supplement, the Company will authorize
agents or underwriters to solicit offers by certain institutions to purchase
Securities from the Company at the public offering price set forth in the
Prospectus Supplement pursuant to Delayed Delivery Contracts ("Contracts")
providing for payment and delivery on the date stated in the Prospectus
Supplement. Each Contract will be for an amount not less than, and unless the
Company otherwise agrees the aggregate principal amount of Securities sold
pursuant to Contracts shall be not more than, the respective amounts stated in
the Prospectus Supplement. Institutions with which Contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other
institutions but shall in all cases be subject to the approval of the Company.
Contracts will not be subject to any conditions except that the purchase by an
institution of the Securities covered by its Contract shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject. A
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<PAGE> 38
commission indicated in the Prospectus Supplement will be paid to underwriters
or agents soliciting purchases of Securities pursuant to Contracts accepted by
the Company.
The place and time of delivery for the Securities in respect of which this
Prospectus is delivered will be set forth in the Prospectus Supplement.
LEGAL OPINIONS
The legality of the Securities in respect of which this Prospectus is being
delivered will be passed on for the Company by James H. Agger, Esq., Vice
President, General Counsel and Secretary of the Company, or Robert F. Gerkens,
Esq., Assistant General Counsel of the Company, and for the underwriters, if
any, by Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York,
New York 10019. Messrs. Agger and Gerkens, in their capacities indicated, are
paid salaries by the Company, they are participants in various employee benefit
plans offered to employees of the Company generally and each owns and has
options to purchase shares of common stock of the Company. Cravath, Swaine &
Moore from time to time acts as special counsel for the Company.
EXPERTS
The financial statements and the related supporting schedules for the year
ended 30 September 1994, incorporated by reference in this Registration
Statement, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated herein by reference in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
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NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS SUPPLEMENT, THE ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT IN
CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS SUPPLEMENT, THE
ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR BY ANY AGENT, DEALER OR UNDERWRITER. NEITHER THIS PROSPECTUS
SUPPLEMENT, NOR THE ACCOMPANYING PROSPECTUS NOR ANY PRICING SUPPLEMENT SHALL
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE
SECURITIES OFFERED HEREBY IN ANY STATE TO ANY PERSON TO WHOM IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION IN SUCH STATE. THE DELIVERY OF THIS PROSPECTUS
SUPPLEMENT, THE ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT AT ANY TIME
DOES NOT IMPLY THAT THE INFORMATION HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT
TO THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
PAGE
Prospectus Supplement
<TABLE>
<S> <C>
Description of Notes........................ S-2
Special Provisions Relating to
Multi-Currency Notes...................... S-15
Foreign Currency and Other Risks............ S-17
Certain U.S. Federal Income Tax
Considerations............................ S-20
Plan of Distribution........................ S-28
Prospectus
Available Information....................... 2
Incorporation of Certain Documents by
Reference................................. 2
The Company................................. 2
Ratios of Earnings to Fixed Charges......... 3
Use of Proceeds............................. 3
Description of Securities................... 3
Plan of Distribution........................ 8
Legal Opinions.............................. 9
Experts..................................... 9
</TABLE>
$400,000,000
LOGO
Medium-Term Notes,
Series D
- ------------------------------------------------------
PROSPECTUS
, 1995
and
PROSPECTUS SUPPLEMENT
, 1995
- ------------------------------------------------------
LEHMAN BROTHERS
GOLDMAN, SACHS & CO.
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 40
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration Fee.................................................. $137,931
Printing Fees..................................................... 30,000*
Accountants' Fees................................................. 25,000*
Rating Agency Fees................................................ 50,000*
Fees and Expenses of Trustee...................................... 30,000*
Blue Sky Fees and Expenses........................................ 5,000*
Miscellaneous..................................................... 22,069*
--------
Total................................................... $300,000*
========
</TABLE>
- ---------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware Corporation Law gives corporations the power to
indemnify officers and directors under certain circumstances.
Article Ninth of the Company's Restated Certificate of Incorporation
contains provisions which provide for indemnification of certain persons
(including officers and directors). The Restated Certificate of Incorporation is
filed as an exhibit to the Company's Annual Report on Form 10-K for the fiscal
year ended September 30, 1987.
The Company maintains insurance that generally insures the officers and
directors of the Company and its subsidiaries (as defined in said policy)
against liabilities incurred in such capacities, and insures the Company with
respect to amounts to which officers and directors become entitled as
indemnification payments from the Company, subject to certain specified
exclusions and deductible and maximum amounts. The Company also maintains a
policy of insurance that insures, among others, certain officers and directors
of the Company and certain of its subsidiaries against liabilities incurred for
Breach of Fiduciary Duty (as defined in said policy) with respect to their
performance of their duties and responsibilities in connection with certain
pension and retirement plans of the Company and certain of its subsidiaries,
subject to certain specified exclusions and deductible and maximum amounts.
ITEM 16. EXHIBITS.
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<S> <C>
Exhibit 1 -- Form of Agency Agreement for Medium-Term Notes, Series D.
Exhibit 4(a) -- Indenture dated as of January 10, 1995, between the Company and
First Fidelity Bank, National Association, as Trustee, relating to
the Securities.
(b) -- Form of Fixed Rate Medium-Term Note, Series D (Filed as Exhibit
4(c) to the Company's Registration Statement No. 33-66004).*
(c) -- Form of Floating Rate Medium-Term Note, Series D (Filed as Exhibit
4(d) to the Company's Registration Statement No. 33-66004).*
(d) -- Form of Fixed Rate Currency Indexed Medium-Term Note, Series D
(Filed as Exhibit 4(e) to the Company's Registration Statement No.
33-66004).*
(e) -- Form of S&P 500 Linked Medium-Term Note, Series D (Filed as
Exhibit A to the Company's Form 8-K dated December 17, 1993).*
Exhibit 5 -- Opinion of Company counsel as to legality of the Securities to be
issued.
Exhibit 12 -- Computation of Ratios of Earnings to Fixed Charges (Filed as
Exhibit (a)(12) to the Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1994, and incorporated herein by
reference).
Exhibit 23(a) -- Consent of Arthur Andersen LLP. (See page II-6).
(b) -- Consent of Company counsel.
</TABLE>
II-1
<PAGE> 41
<TABLE>
<S> <C>
Exhibit 24 -- Power of Attorney.
Exhibit 25 -- Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of First Fidelity Bank, National
Association, as Trustee.
</TABLE>
- ---------------
* The Notes to be issued under this Registration Statement will be substantially
in the form of the Form of Notes incorporated by reference hereby, and each
will be titled Series D, Due from 9 Months to 20 Years from Date of Issue.
ITEM 17. UNDERTAKINGS.
THE UNDERSIGNED REGISTRANT HEREBY UNDERTAKES:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth or described in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such
II-2
<PAGE> 42
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of the registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE> 43
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Allentown and Commonwealth of Pennsylvania on the
19th day of January, 1995.
AIR PRODUCTS AND CHEMICALS, INC.
(Issuer)
By /s/ G. A. WHITE
-----------------------------------------------
(G. A. White, Senior Vice President -- Finance)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on January 19, 1995.
SIGNATURE TITLE
--------- -----
/s/ HAROLD A. WAGNER Director and Chairman of
--------------------- the Board (Principal
(Harold A. Wagner) Executive Officer)
/s/ G. A. WHITE Senior Vice President -- Finance
--------------------- (Principal Financial Officer)
(G. A. White)
/s/ PAUL E. HUCK Corporate Controller
--------------------- (Principal Accounting Officer)
(Paul E. Huck)
* Director
---------------------
(Dexter F. Baker)
* Director
---------------------
(Tom H. Barrett)
* Director
---------------------
(L. Paul Bremer, III)
* Director
---------------------
(Will M. Caldwell)
* Director
---------------------
(Robert Cizik)
* Director
---------------------
(Ruth M. Davis)
* Director
---------------------
(Robert F. Dee)
II-4
<PAGE> 44
SIGNATURE TITLE
--------- -----
* Director
---------------------
(Terry R. Lautenbach)
* Director
---------------------
(Walter F. Raab)
* Director
---------------------
(Judith Rodin)
* Director
---------------------
(Takeo Shiina)
* G. A. White, Senior Vice President -- Finance, by signing his name hereto,
does sign this document on behalf of the above-noted individuals pursuant to a
power of attorney duly executed by such individuals, which power of attorney
is filed with the Securities and Exchange Commission herewith.
/s/ G. A. WHITE
-------------------------------
(G. A. White, Attorney-in-Fact)
II-5
<PAGE> 45
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To: Air Products and Chemicals, Inc.:
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our reports dated 3 November 1994
included or incorporated by reference in the Annual Report of Air Products and
Chemicals, Inc., on Form 10-K for the year ended 30 September 1994 and to all
references to our Firm included in this Registration Statement.
ARTHUR ANDERSEN LLP
Philadelphia, Pennsylvania
19 January 1995
II-6
<PAGE> 46
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER EXHIBIT PAGE
--------------- ------------------------------------------------------------ ------------
<S> <C> <C>
Exhibit 1 -- Form of Agency Agreement for Medium-Term Notes, Series D.
Exhibit 4(a) -- Indenture dated as of January 10, 1995, between the
Company and First Fidelity Bank, National Association, as
Trustee, relating to the Securities.
(b) -- Form of Fixed Rate Medium-Term Note, Series D (Filed as
Exhibit 4(c) to the Company's Registration Statement No.
33- 66004).*
(c) -- Form of Floating Rate Medium-Term Note, Series D (Filed
as Exhibit 4(d) to the Company's Registration Statement No.
33-66004).*
(d) -- Form of Fixed Rate Currency Indexed Medium-Term Note,
Series D (Filed as Exhibit 4(e) to the Company's
Registration Statement No. 33-66004).*
(e) -- Form of S&P 500 Linked Medium-Term Note, Series D (Filed
as Exhibit A to the Company's Form 8-K dated December 17,
1993).*
Exhibit 5 -- Opinion of Company counsel as to legality of the
Securities to be issued.
Exhibit 12 -- Computation of Ratios of Earnings to Fixed Charges (Filed
as Exhibit (a)(12) to the Company's Annual Report on Form
10-K for the fiscal year ended January 30, 1994, and
incorporated herein by reference).
Exhibit 23(a) -- Consent of Arthur Andersen LLP. (See page II-6).
(b) -- Consent of Company counsel.
Exhibit 24 -- Power of Attorney.
Exhibit 25 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of First Fidelity Bank,
National Association, as Trustee.
</TABLE>
- ---------------
* The Notes to be issued under this Registration Statement will be substantially
in the form of the Form of Notes incorporated by reference hereby, and each
will be titled Series D, Due from 9 Months to 20 Years from Date of Issue.
<PAGE> 1
Exhibit 1
U.S. $400,000,000 1/
Air Products and Chemicals, Inc.
Medium-Term Notes, Series D
AGENCY AGREEMENT
, 1995
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285-1200
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Ladies and Gentlemen:
Air Products and Chemicals, Inc., a Delaware corporation (the
"Corporation"), confirms its agreement with each of you (individually, an
"Agent" and collectively, the "Agents") (which term shall, for all purposes of
this Agreement, include Lehman Government Securities Inc., an affiliate of
Lehman Brothers Inc.) with respect to the issue and sale by the Corporation of
up to $400,000,000 1/ aggregate principal amount of its Medium-Term Notes,
Series D, Due from 9 Months to 20 Years from Date of Issue (the "Notes"). The
Notes are to be issued from time to time pursuant to an indenture, dated as of
January 10, 1995 (as it may be supplemented or amended from time to time, the
"Indenture"), between the Corporation and First Fidelity Bank, National
Association, as trustee (the "Trustee").
Subject to the terms and conditions stated herein, and subject
to the reservation by the Corporation of the right to sell Notes directly on
its own behalf, and to sell Notes to or through such other agents as the
Corporation shall appoint from time to time, the Corporation hereby appoints
the Agents as agents of the Corporation for the
- --------------------
1/ Or its equivalent in foreign currencies or currency units.
<PAGE> 2
2
purpose of soliciting or receiving offers to purchase the Notes from the
Corporation by others. The Corporation shall notify the Agents of any sale
made to or through other agents on or promptly after the settlement date for
such sale. This Agreement shall only apply to sales of the Notes and not to
sales of any other securities or evidences of indebtedness of the Corporation
and only on the specific terms set forth herein.
SECTION 1. Representations and Warranties. The Corporation
represents and warrants to each Agent as of the Closing Date referred to in
Section 2(f), and as of the times referred to in Section 6(a) at which the
Corporation accepts offers to purchase Notes and delivers Notes so purchased
(each such time being hereinafter sometimes referred to as a "Representation
Date"), as follows:
(a) Registration Statement and Prospectus. The Corporation
has filed with the Securities and Exchange Commission (the
"Commission"), pursuant to the Securities Act of 1933, as amended (the
"Securities Act") and the published rules and regulations adopted by
the Commission thereunder (the "Rules"), a registration statement on
Form S-3 (No. 33- ) (the "Registration Statement"), including a
basic prospectus, which has become effective under the Securities Act,
for the registration under the Securities Act of $400,000,000
aggregate principal amount of debt securities (the "Securities"),
including the Notes. The Registration Statement meets the
requirements set forth in Rule 415(a)(1) under the Securities Act and
complies in all other material respects with said Rule. The
Corporation has included in the Registration Statement a supplement to
the form of prospectus included in the Registration Statement relating
to the Notes and the plan of distribution thereof (as amended or
supplemented from time to time, the "Prospectus Supplement"). In
connection with the sale of the Notes, the Corporation proposes to
file with the Commission pursuant to the applicable paragraph of Rule
424(b) under the Securities Act further supplements to the Prospectus
Supplement specifying the interest rates, maturity dates, redemption
provisions and other similar terms of the Notes sold pursuant hereto
or the offering thereof. "Basic Prospectus" shall mean the form of
basic prospectus relating to the Securities contained in the
Registration Statement. The term "Prospectus" means the Basic
Prospectus as supplemented by the
<PAGE> 3
3
Prospectus Supplement. Any reference herein to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus includes the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") on or before the
date hereof or the issue date of the Prospectus Supplement or the
Prospectus, as the case may be, and any reference herein to "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus includes the filing of any document under the Exchange Act
after the date hereof or the issue date of the Prospectus Supplement
or the Prospectus, as the case may be, and deemed to be incorporated
therein by reference.
(b) Accuracy of Registration Statement. The Registration
Statement, as amended, as of each Representation Date, complies in all
material respects with the provisions of the Securities Act and the
Rules and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and the
Prospectus, as supplemented as of any such time, complies in all
material respects with the provisions of the Securities Act and the
Rules and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Prospectus as supplemented at the Closing
Date may not include the information contemplated by Section l(a) to
be contained in pricing supplements thereto; provided, further,
however, that none of the representations and warranties contained in
this Section 1(b) shall apply to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee or (ii) statements
in, or omissions from, the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto made in reliance upon and
in conformity with information furnished in writing to the Corporation
by or on behalf of the Agents for use in connection with the
<PAGE> 4
4
preparation of the Registration Statement or the Prospectus or any
such amendment or supplement.
(c) Accountants. The accountants whose reports with respect
to financial statements are included in the Registration Statement and
the Prospectus are independent with respect to the Corporation and its
subsidiaries as required by the Securities Act and the Rules.
(d) Material Changes. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
as amended or supplemented as of such Representation Date, and except
as set forth therein, there has not been any material adverse
development or change in the condition, financial or other, or the
results of operations of the Corporation and its consolidated
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(e) Litigation. Except as set forth in the Registration
Statement and the Prospectus, as amended or supplemented as of such
Representation Date, neither the Corporation nor any of its
subsidiaries has any litigation or governmental proceeding pending of
a character which will result in a judgment, decree or order having a
material adverse effect on the condition, financial or other, or the
results of operations of the Corporation and its consolidated
subsidiaries taken as a whole.
(f) Valid Incorporation; Subsidiaries. The Corporation and
each subsidiary of the Corporation has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
jurisdiction in which it was incorporated, has the corporate power to
own or hold under lease the property it purports to own or hold under
lease and to carry on the business in which it is engaged, and is duly
licensed and duly qualified and is in good standing as a foreign
corporation in each jurisdiction wherein the character of the property
owned or held under lease by it, or the nature of the business
transacted by it, makes such licensing or qualification necessary; and
all the outstanding shares of the capital stock of the subsidiaries of
the Corporation are owned directly, or indirectly through wholly owned
subsidiaries, by the
<PAGE> 5
5
Corporation, free and clear of any material lien, pledge or other
encumbrance, except for (i) directors' and officers' qualifying shares
and (ii) shares of such stock representing minority interests
reflected in the financial statements of the Corporation and its
consolidated subsidiaries included in the Prospectus.
(g) Legality. At the date when the Prospectus Supplement is
filed with, or mailed for filing to, the Commission pursuant to Rule
424(b) under the Securities Act and at each Representation Date
thereafter, (i) the issuance and delivery of the Notes by the
Corporation pursuant to this Agreement will have been duly and validly
authorized by all necessary corporate action and no authorization,
consent or approval of the stockholders and no further authorization
or approval of the Board of Directors of the Corporation will be
required for the issuance, sale and delivery of the Notes as
contemplated herein; (ii) neither such issuance, sale or delivery of
the Notes nor the consummation of any other of the transactions herein
contemplated will result in a breach by the Corporation of any terms
of, or constitute a default under, any other agreement or undertaking
of the Corporation; and (iii) no authorization, consent or approval
of, or filing or registration with, or exemption by, any government or
public body or authority of the United States or of any State or any
department or subdivision thereof, other than such as may be required
under the securities or blue sky laws of any jurisdiction and other
than registration of the Notes under the Securities Act and
qualification of the Indenture under the Trust Indenture Act, is
required for the validity of the Notes or for the valid offering,
issuance, sale and delivery of the Notes by the Corporation pursuant
to this Agreement or for the execution and delivery by the Corporation
of this Agreement and the Indenture.
(h) No Stop Order. The Commission has not issued any order
preventing or suspending the use of the Prospectus as supplemented as
of such Representation Date.
(i) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, as amended or
supplemented as of such Representation Date, present fairly the
financial condition and results of operations of the entities
<PAGE> 6
6
purported to be shown thereby, at the dates and for the periods
indicated, and have been, and in the case of financial statements
included in any amendments or supplements as of such Representation
Date will be, prepared, except as stated therein, in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(j) Timely Filing of Documents. During the twelve calendar
months and any portion of a calendar month immediately preceding the
date of the filing of the Registration Statement with the Commission,
the Corporation has timely filed all documents and amendments to
previously filed documents required to be filed by it pursuant to
Sections 12, 13, 14 or 15(d) of the Exchange Act. The documents
incorporated by reference into the Prospectus, as supplemented as of
the applicable Representation Date, have been, and each document
subsequently incorporated by reference therein as of such
Representation Date will be, prepared by the Corporation in conformity
with the requirements of the Exchange Act and the rules and
regulations thereunder and such documents have been, or in the case of
documents subsequently incorporated by reference therein will be as of
the applicable Representation Date, timely filed as required thereby.
Copies of each of the documents incorporated by reference into the
Prospectus, together with satisfactory evidence of the filing thereof
and of the other documents and amendments referred to in the first
sentence of this paragraph, have been, or as of the applicable
Representation Date will be, delivered by the Corporation to the
Agents.
(k) Doing Business with Cuba. The Corporation confirms as of
the date hereof, and each acceptance by the Corporation of an offer to
purchase Notes will be deemed to be an affirmation, that the
Corporation is in compliance with all provisions of Section 517.075 of
the Florida Securities and Investor Protection Act relating to
disclosure of business in Cuba, and the Corporation further agrees
that it will continue to so comply in the future.
SECTION 2. Solicitations as Agent. (a) On the basis of the
representations and warranties contained herein, but subject to the terms and
conditions herein set forth, each Agent agrees, as an agent of the Corporation,
to
<PAGE> 7
7
use its reasonable best efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus, as supplemented from time
to time.
(b) The Corporation reserves the right, in its sole
discretion, to suspend solicitation of offers to purchase the Notes commencing
at any time for any period of time or permanently. Upon receipt of at least
one business day's prior notice from the Corporation, the Agents will forthwith
suspend solicitation of offers to purchase Notes from the Corporation until
such time as the Corporation has advised the Agents that such solicitation may
be resumed. For the purpose of the foregoing sentence, "business day" shall
mean any day which is not a Saturday or Sunday or a legal holiday and which is
not a day on which banking institutions are authorized or required by law or
regulation to close in New York, New York. The suspension of solicitation of
offers to purchase the Notes by the Corporation shall likewise suspend until
the next Representation Date the representations and warranties set forth in
Section 1 and the covenants set forth in Sections 3 and 6, except as and to the
extent provided in Section 10.
(c) Promptly upon the closing of the sale of any Notes sold
by the Corporation as a result of a solicitation made by an Agent, the
Corporation agrees to pay such Agent a commission in accordance with the
schedule set forth in Exhibit A hereto.
(d) The Agents are authorized to solicit offers to purchase
the Notes only in denominations of U.S. $100,000 2/ or any amount in excess
thereof which is an integral multiple of U.S. $1,000, at a purchase price equal
to 100% of the principal amount thereof or such other principal amount as shall
be specified by the Corporation. Each Agent shall communicate to the
Corporation, orally or in writing, each reasonable offer to purchase Notes
received by it as an Agent other than those rejected by such Agent pursuant to
the next sentence. Each Agent shall have the right, in its discretion
reasonably exercised without
- ---------------------
2/ Or the equivalent (rounded down to an integral multiple of 10,000
units of the denomination specified in a supplement to the Prospectus) in the
relevant foreign currency or currency unit, or such larger amount in integral
multiples of 10,000 units of such denomination.
<PAGE> 8
8
advising the Corporation, to reject any offer to purchase the Notes received by
it, in whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein. The Corporation shall have the sole right to
accept offers to purchase the Notes and may reject any such offer in whole or
in part.
(e) Administrative procedures respecting the sale of Notes
(the "Procedures") are set forth in Exhibit B hereto and may be amended in
writing from time to time by mutual agreement of the Agents and the Corporation
after notice to, and with the approval of, the Trustee. Each Agent and the
Corporation agree to perform the respective duties and obligations specifically
provided to be performed by each of them herein and in the Procedures.
(f) The documents required to be delivered by Section 5
hereof shall be delivered at the offices of Cravath, Swaine & Moore, 825 Eighth
Avenue, New York, New York 10019 not later than 10:00 A.M., New York City time,
on the date of this Agreement or at such later time or other location in New
York City as may be mutually agreed upon by the Corporation and the Agents,
which in no event shall be later than the time at which the Agents commence
solicitation of offers to purchase Notes hereunder (the "Closing Date").
SECTION 3. Covenants of the Corporation. The Corporation
covenants and agrees:
(a) To furnish promptly to each of the Agents and to their
counsel a signed copy of the Registration Statement as originally filed and
each amendment or supplement thereto, and a copy of each Prospectus filed with
the Commission, including all supplements thereto and all documents
incorporated therein by reference and all consents and exhibits filed
therewith;
(b) To deliver promptly to the Agents such number of the
following documents as they may reasonably request: (i) conformed copies of the
Registration Statement (excluding exhibits other than the computation of the
ratio of earnings to fixed charges, the Indenture and this Agreement), (ii) the
Basic Prospectus, each preliminary prospectus and the Prospectus and (iii) any
documents incorporated by reference in the Prospectus;
<PAGE> 9
9
(c) If, during any period in which, in the opinion of counsel
for the Agents, a prospectus relating to the Notes is required to be delivered
under the Securities Act in respect of Notes being offered for sale by the
Agents, any event relating to or affecting the Corporation occurs as a result
of which the Prospectus 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, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Securities Act (other than periodic reports under the Exchange Act
that are timely filed), to notify the Agents promptly to suspend solicitation
of purchases of the Notes; and if the Corporation shall decide to amend or
supplement the Registration Statement or the Prospectus, to promptly advise the
Agents by telephone (with confirmation in writing) and to promptly prepare and
timely file with the Commission an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance;
provided, however, that if during the period referred to above any Agent shall
own any Notes which it has purchased from the Corporation as principal with the
intention of reselling them, the Corporation shall promptly prepare and timely
file with the Commission any amendment or supplement to the Registration
Statement or any Prospectus that may, in the judgment of the Corporation or the
Agents, be required by the Securities Act or requested by the Commission;
(d) To timely file with the Commission during the period
referred to in (c) above all documents (and any amendments to previously filed
documents) required to be filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act;
(e) Upon filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to the Registration Statement,
(ii) any amendment or supplement to the Prospectus or (iii) any document
incorporated by reference in any of the foregoing or any amendment of or
supplement to any such incorporated document, to furnish a copy thereof to the
Agents;
(f) During the period referred to in (c) above, to advise the
Agents immediately (i) when any post-effective amendment to the Registration
Statement relating to or covering the Notes becomes effective, (ii) of any
demand by the Commission for an amendment or supplement to the
<PAGE> 10
10
Registration Statement, to the Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information (other than
any demand for an amendment or supplement to or additional information
concerning documents hereafter filed with the Commission pursuant to the
Exchange Act and incorporated by reference in the Registration Statement and
Prospectus, where the failure to comply with such request would not cause the
Registration Statement or the Prospectus, as then supplemented or amended, to
fail to comply in any material respect with the provisions of the Securities
Act and the applicable Rules or to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading), (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or any order directed to the
Prospectus or any document incorporated therein by reference or the initiation
or threat of any stop order proceeding, (iv) of receipt by the Corporation of
any notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threat of any
proceeding for that purpose and (v) of the happening of any event relating to
or affecting the Corporation which makes untrue any statement of a material
fact made in the Registration Statement or the Prospectus or which requires the
making of a change in the Registration Statement or the Prospectus in order to
make any material statement therein not misleading;
(g) If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting
of that order at the earliest possible time;
(h) As soon as practicable, but not later than 18 months,
after the date of each acceptance by the Corporation of an offer to purchase
Notes hereunder, to make generally available to its security holders an
earnings statement or statements which will satisfy the provisions of Section
11(a) of the Securities Act (including, at the option of the Corporation, Rule
158 of the Rules);
(i) So long as any of the Notes are outstanding, to furnish to
the Agents, not later than the time the Corporation makes the same available to
others, copies of all public reports or press releases (i) sent by the
<PAGE> 11
11
Corporation over the P.R. Newswire, (ii) furnished by the Corporation to any
securities exchange on which the Notes are listed pursuant to requirements of
or agreements with such exchange or (iii) filed with the Commission pursuant to
the Exchange Act or any rule or regulation of the Commission thereunder; and
(j) To endeavor, in cooperation with the Agents, to qualify
the Notes for offering and sale under the securities laws of such jurisdictions
as the Agents may designate, and to maintain such qualifications in effect for
as long as may be required for the distribution of the Notes, and to file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided; provided, however, that
the Corporation shall not be required to register or qualify as a foreign
corporation nor, except as to matters and transactions relating to the offer or
sale of the Notes, take any action which would subject it to service of process
generally in any jurisdiction.
SECTION 4. Payment of Expenses. The Corporation will pay (i)
the costs incident to the authorization, issuance, sale and delivery of the
Notes and any taxes payable in that connection, (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto, (iii) the costs incident to
the preparation, printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Corporation under the Exchange
Act, (iv) the costs of distributing, as the Agents may reasonably request, the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including exhibits), any preliminary
prospectus, the Basic Prospectus, the Prospectus, any supplement or amendment
to the Prospectus and any documents incorporated by reference in any of the
foregoing documents, (v) the fees and disbursements of the Trustee, any paying
agent, any calculation agent, any exchange rate agent and any other agents
appointed by the Corporation, and their respective counsel, (vi) the costs and
fees in connection with the listing of the Notes on any securities exchange,
(vii) the cost of any filings with the National Association of Securities
Dealers, Inc., (viii) the reasonable fees and disbursements of counsel to the
Corporation and counsel to the Agents, (ix) the fees paid to rating agencies in
connection with the rating of the Notes, (x) the fees and expenses of
qualifying the Notes under the securities laws of the
<PAGE> 12
12
several jurisdictions as provided in Section 3(j) hereof and of preparing and
printing a Blue Sky Memorandum and a memorandum concerning the legality of the
Notes as an investment (including the reasonable fees and expenses of counsel
for the Agents in connection therewith), (xi) all advertising expenses in
connection with the offering of the Notes incurred with the consent of the
Corporation and (xii) other costs and expenses incurred by the Corporation in
connection with the performance of its obligations under this Agreement.
SECTION 5. Conditions of Obligations. The obligations of the
Agents, as agents of the Corporation, under this Agreement to solicit offers to
purchase the Notes, the obligation of any person who has agreed to purchase
Notes sold through an Agent as agent to make payment for and take delivery of
Notes, and the obligation of either Agent to purchase Notes pursuant to any
Purchase Agreement (as hereinafter defined), are subject to the accuracy on
each Representation Date of the representations and warranties of the
Corporation contained herein, to the performance by the Corporation of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement or any part thereof nor any order directed to any
document incorporated by reference in the Prospectus shall have been issued; no
stop order proceeding shall have been initiated or threatened by the
Commission; no challenge shall have been made by the Commission and shall not
have been satisfactorily answered or remedied by the Corporation to the
accuracy or adequacy of any document incorporated by reference in the
Prospectus in any respect that would constitute a failure of the Prospectus, as
supplemented, to comply in any material respect with the provisions of the
Securities Act and the applicable Rules or that, if substantiated, would mean
that the Prospectus, as supplemented, would contain any untrue statement of a
material fact or would omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances in which they were made, not misleading; any request of the
Commission of the nature referred to in Section 3(f)(ii) shall have been
complied with.
(b) No order suspending the sale of the Notes in any
jurisdiction designated by the Agents pursuant to
<PAGE> 13
13
Section 3(j) hereof shall have been issued, and no proceeding for that purpose
shall have been initiated or threatened.
(c) The Agents shall not have discovered and disclosed to the
Corporation that the Registration Statement or any Prospectus contains an
untrue statement of a fact which, in the opinion of counsel for the Agents, is
material or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(d) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the Notes,
the Indenture, the form of the Registration Statement, the Prospectus (other
than financial statements and other financial data) and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Agents and the Corporation
shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(e) At the Closing Date, the Agents shall have received the
opinion, addressed to the Agents and dated the Closing Date, of the General
Counsel of the Corporation or the Assistant General Counsel of the Corporation,
in form and substance satisfactory to the Agents and their counsel, to the
effect that:
(i) the Corporation has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
State of Delaware, and has the corporate power to own or hold under
lease the property it purports to own or hold under lease and to carry
on the business in which it is engaged;
(ii) the form of the Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(iii) the issuance, sale and delivery of the Notes by the
Corporation pursuant to this Agreement have been duly and validly
authorized by all necessary corporate action; and no authorization,
consent or approval of, or filing or registration with, or exemption
by, any
<PAGE> 14
14
government or public body or authority of the United States or of any
State or any Department or subdivision thereof, other than such as may
be required under the securities or blue sky laws of any jurisdiction,
is required for the validity of the Notes or for the valid offering,
issuance, sale and delivery of the Notes by the Corporation pursuant
to this Agreement or for the execution and delivery by the Corporation
of this Agreement and the Indenture;
(iv) the Indenture has been duly and validly authorized,
executed and delivered by the Corporation and constitutes an
instrument valid and binding on the Corporation and enforceable in
accordance with its terms (except as (a) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability);
(v) the Notes, when issued in a form conforming to the
specimens thereof examined by such counsel, will be in a form
contemplated by the Indenture and, assuming due execution of the Notes
on behalf of the Corporation and authentication thereof by the
Trustee, upon the delivery thereof and payment therefor as provided in
this Agreement, the Notes will constitute valid and binding
obligations of the Corporation enforceable in accordance with their
respective terms (except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability), entitled to the
benefits of the Indenture;
(vi) this Agreement has been duly authorized, executed and
delivered by the Corporation, and the performance of this Agreement
and the consummation of the transactions herein contemplated will not
result in a breach of any of the terms or provisions of, or constitute
a default under, the Restated Certificate of Incorporation or By-laws
of the Corporation or, to the knowledge or such counsel, any law,
administrative regulation or court decree applicable to the
Corporation or by which the Corporation or any of its proper-
<PAGE> 15
15
ties is bound or affected (except to the extent that the
enforceability of the indemnity provisions of this Agreement may be
limited by securities laws or public policy);
(vii) the performance of this Agreement and the consummation
of the transactions herein contemplated will not result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, deed of trust, note, note agreement or other agreement or
instrument known to such counsel to which the Corporation or any of
its subsidiaries is a party or by which the Corporation or any of its
subsidiaries or any of their properties is bound or affected;
(viii) the Registration Statement and any amendments thereof
have become and are effective and the Registration Statement, the
Prospectus and each amendment thereof or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Securities Act, and the
Rules (except that no opinion need be expressed as to financial
statements and other financial data), the Securities are registered
under the Securities Act, and the Indenture has been qualified under
the Trust Indenture Act; and
(ix) in passing upon the form of the Registration Statement
and the Prospectus, such counsel has necessarily assumed the
correctness and completeness of the statements made or included
therein and takes no responsibility therefor, except insofar as such
statements relate to the description of the Notes or the Indenture or
relate to such counsel; the statements with regard to such counsel
made under the heading "Legal Opinions" in the Prospectus are correct;
and such counsel has no reason to believe that (except as aforesaid)
the Registration Statement (or any post-effective amendment thereof)
at the time it became effective contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that (except as aforesaid) the Prospectus (as amended or
supplemented, if so amended or supplemented) contains any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the
<PAGE> 16
16
circumstances under which they were made, not misleading as of the
Closing Date.
(f) The Corporation shall have furnished to the Agents on the
Closing Date a certificate of the Corporation, dated the Closing Date, signed
on its behalf by the President, the Vice President-Finance or the Treasurer,
stating that:
(i) The representations, warranties and agreements of the
Corporation in section 1 hereof are true and correct in all material
respects as of the date of such certificate with the same effect as if
made on such date; and the Corporation has not received any notice
that the conditions set forth in Section 5(a) hereof will not be
satisfied as of the Closing Date or any other Representation Date; and
(ii) The person executing such certificate has examined the
Registration Statement and the Prospectus and, in such person's
opinion, (A) the Registration Statement at the date thereof, or as of
the most recent amendment thereto, if any, did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) the Prospectus as supplemented at the date of such
certificate does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than
the information to be provided in pricing supplements thereto as
contemplated by Section l(a) hereof), and (C) since the effective date
of the Registration Statement (or the most recent amendment thereto,
if any) there has not occurred any event required to be set forth in
an amendment to the Registration Statement which has not been so set
forth.
(g) The Corporation shall have furnished to the Agents on the
Closing Date a letter of Arthur Andersen LLP, addressed jointly to the
Corporation and the Agents and dated the Closing Date, of the type described in
the American Institute of Certified Public Accountants Statement on Auditing
Standards No. 72 substantially in the form heretofore approved by the Agents,
covering such specified financial statement items and procedures as the Agents
may
<PAGE> 17
17
reasonably request and in form and substance reasonably satisfactory to the
Agents.
(h) There shall not have occurred, since the date of this
Agreement, in the case of the obligations of the Agents to solicit offers, or
since the date of the Corporation's acceptance of an offer to purchase Notes,
in the case of the obligation to purchase such Notes: any material adverse
change in, or any adverse development which materially affects the business,
properties, condition (financial or other), results of operations or prospects
of the Corporation and its consolidated subsidiaries taken as a whole; a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the establishment of minimum prices on such exchange; a
general moratorium on commercial banking activities declared by either federal
or New York State authorities; any material adverse change in the existing
financial, political or economic conditions in the United States or elsewhere;
an outbreak or escalation of major hostilities involving the United States or
the declaration of a national emergency or war by the United States; or any
downgrading in the rating accorded the Corporation'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 Securities
Act, or any public announcement by any such organization that the rating
accorded any of the Corporation's debt securities have been placed under
surveillance or review with possible negative implications, if the effect
thereof in the judgment of such Agent or purchaser makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Notes or the
purchase of Notes from the Corporation, as the case may be.
(i) Prior to the Closing Date, the Corporation shall have
furnished to the Agents such further information, certificates and documents as
the Agents or counsel to the Agents may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance satisfactory to
counsel for the Agents.
SECTION 6. Additional Covenants of the Corporation. The
Corporation covenants and agrees that:
<PAGE> 18
18
(a) Each acceptance by it of an offer for the purchase of
Notes solicited by an Agent hereunder shall be deemed to be an affirmation that
the representations and warranties of the Corporation contained in this
Agreement are true and correct at the time of such acceptance, and an
undertaking that such representations and warranties will be true and correct
at the time of delivery to the purchaser or his agent of the Notes relating to
such acceptance as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended or supplemented to each
such time).
(b) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a pricing supplement
or an amendment or supplement providing solely for a change in the interest
rates or maturities of the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes and other than by the filing of a
document incorporated by reference into the Prospectus other than the documents
specified below) or the Corporation files with the Commission an Annual Report
on Form 10-K, a Quarterly Report on Form 10-Q, or a Current Report on Form 8-K
pursuant to Items 1, 2, 4, or 6 of such Form, the Corporation shall,
concurrently with or promptly after such amendment, supplement or filing,
furnish the Agents with a certificate of the President, the Vice
President--Finance or the Treasurer of the Corporation in form satisfactory to
the Agents to the effect that the statements contained in the certificate
referred to in Section 5(f) hereof which was last furnished to the Agents are
true and correct at the time of such amendment, supplement or filing, as the
case may be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as the certificate referred to in said Section
5(f), modified as necessary to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
certificate; provided, however, that if at the time of such amendment or
supplement, the Corporation is not accepting offers to purchase the Notes or
has instructed the Agents to cease their solicitation of offers to purchase the
Notes, then the certificate required to be delivered pursuant to this Section
6(b) shall not be required until the Corporation requests that the Agents
resume the solicitation of offers to purchase Notes.
<PAGE> 19
19
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a pricing supplement
or an amendment or supplement providing solely for a change in the interest
rates or maturities of the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes and other than by the filing of a
document incorporated by reference into the Prospectus other than the documents
specified below) or the Corporation files with the commission an Annual Report
on Form 10-K, a Quarterly Report on Form 10-Q, or a Current Report on Form 8-K
pursuant to Items 1, 2, 4, or 6 of such Form, the Corporation shall,
concurrently with or promptly after such amendment, supplement or filing,
furnish the Agents and their counsel with the written opinion of the General
Counsel or the Assistant General counsel of the Corporation, addressed to the
Agents and dated the date of delivery of such opinion, in form satisfactory to
the Agents, of the same tenor as the opinion referred to in Section 5(e)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended or supplemented to the time of delivery of such
opinion; provided, however, that in lieu of such opinion, such counsel may
furnish the Agent with a letter to the effect that the Agent may rely on such
prior opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance);
provided, further, however, that if at the time of such amendment or
supplement, the Corporation is not accepting offers to purchase the Notes or
has instructed the Agents to cease their solicitation of offers to purchase the
Notes, then the opinion or letter required to be delivered pursuant to this
Section 6(c) shall not be required until the Corporation requests that the
Agents resume the solicitation of offers to purchase Notes.
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information (other than by the filing of a document incorporated by reference
into the Prospectus other than the documents specified below) or the
Corporation files with the Commission an Annual Report on Form 10-K, a
Quarterly Report on Form 10-Q or a current Report on Form 8-K pursuant to Items
2 or 4 of such Form, the Corporation shall cause Arthur Andersen LLP (or the
Corporation's then current independent public accountants) to furnish the
<PAGE> 20
20
Agents, concurrently with or promptly after such amendment, supplement or
filing, a letter, addressed jointly to the Corporation and the Agents and dated
the date of delivery of such letter, in form and substance reasonably
satisfactory to the Agents, of the same tenor as the letter referred to in
Section 5(g) 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 Corporation;
provided, however, that if the Registration Statement or the Prospectus is
amended or supplemented solely to include financial information as of and for a
fiscal quarter, Arthur Andersen LLP may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement unless
there is contained therein any other accounting, financial or statistical
information that, in the reasonable judgment of the Agents, should be covered
by such letter, in which event such letter shall also cover such other
information; provided, further, however, that if at the time of such amendment
or supplement, the Corporation is not accepting offers to purchase the Notes or
has instructed the Agents to cease their solicitation of offers to purchase the
Notes, then the letter required to be delivered pursuant to this Section 6(d)
shall not be required until the Corporation requests that the Agents resume the
solicitation of offers to purchase Notes.
SECTION 7. Indemnities. (a) By the Corporation. The
Corporation agrees to indemnify and hold harmless each Agent and each person
who controls either Agent within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or any other statute
or common law, and to reimburse the Agents and such controlling persons for any
legal or other expenses reasonably incurred by them in connection with
investigating any claims and defending any actions, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any post-effective amendment thereof, or 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, or
(ii) any untrue statement or alleged
<PAGE> 21
21
untrue statement of a material fact contained in any preliminary prospectus, if
used prior to the issue date of the Prospectus, or contained in the Prospectus
(as amended or supplemented, if the Corporation shall have filed with the
Commission any amendment thereof or supplement thereto), if used within the
period during which the Agents are authorized to solicit offers to purchase the
Notes as provided in Section 2(b) hereof, or the omission or alleged omission
to state therein (if so used) a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the indemnity agreement contained in this Section 7(a) shall not apply to
any such losses, claims, damages, liabilities or actions arising out of, or
based upon, any such untrue statement or alleged untrue statement, or any such
omission or alleged omission if such statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Corporation
by or on behalf of either Agent for use in connection with the preparation of
the Registration Statement, any preliminary prospectus or the Prospectus or any
such amendment thereof or supplement thereto, or was contained in that part of
the Registration Statement constituting the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee; and
provided, further, such indemnity with respect to the Prospectus or any
preliminary prospectus shall not inure to the benefit of an Agent (or any
person controlling such Agent) if the person asserting any such loss, claim,
damage or liability purchased the Notes which are the subject thereof from such
Agent and such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such Notes to such
person in any case where such delivery is required by the Securities Act and
the untrue statement or omission of a material fact contained in the Prospectus
or any preliminary prospectus was corrected in the Prospectus (or the
Prospectus as supplemented). The indemnity agreement contained in this Section
7(a) is subject to the undertaking of the Corporation with respect to
indemnification of officers and directors of the Corporation contained in the
Registration Statement, but only to the extent stated in said undertaking.
(b) By the Agents. Each Agent agrees, in the manner and to
the same extent as set forth in Section 7(a) hereof, to indemnify and hold
harmless the Corporation, each
<PAGE> 22
22
person who controls the Corporation within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each director of the
Corporation and each of its officers who shall have signed the Registration
Statement, with respect to any statement in or omission from the Registration
Statement or any post-effective amendment thereof or the Basic Prospectus, any
preliminary prospectus or the Prospectus (as amended or supplemented, if so
amended or supplemented), if such statement or omission was made in reliance
upon and in conformity with information furnished as herein stated or otherwise
furnished in writing to the Corporation by or on behalf of such Agent for use
in connection with the preparation of the Registration Statement or any
preliminary prospectus or the Prospectus or any such amendment thereof or
supplement thereto.
(c) General. Each indemnified party will, promptly after the
receipt of notice of the commencement of any action against such indemnified
party in respect of which indemnity may be sought from an indemnifying party on
account of an indemnity agreement contained in this Section 7, notify the
indemnifying party in writing of the commencement thereof. The omission of any
indemnified party so to notify an indemnifying party of any such action shall
relieve such indemnifying party from any liability which it may have to such
indemnified party on account of the indemnity agreement contained in this
Section 7, but shall not relieve such indemnifying party from any other
liability which it may have to such indemnified party. Except as provided in
the next succeeding sentence, in case any such action shall be brought against
any indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party, and after notice from such
indemnifying party to such indemnified party of its election so to assume the
defense thereof, such indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation. Such indemnified party shall have the
right to employ its own counsel in any such action, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the employment of such counsel has been authorized by the indemnifying party in
connection with the defense of
<PAGE> 23
23
such action, (ii) the named parties to any such action (including any impleaded
parties) include both such indemnified party and the indemnifying party and
such indemnified party shall have been advised by such counsel that
representation of both such indemnified party and the indemnifying party by the
same counsel would be inappropriate due to actual or potential differing
interests between them (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action, or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses
with respect to any period during the pendency of such action or similar or
related actions of more than one separate firm of attorneys for all indemnified
parties so named by the Corporation or by Agent, as the case may be, it being
further understood, however, that the firm of attorneys so designated may be
changed from time to time with respect to different periods during the pendency
of such action or similar or related actions) or (iii) the indemnifying party
shall not have assumed the defense of such action and employed counsel therefor
satisfactory to such indemnified party within a reasonable time after notice of
commencement of such action, in any of which events such fees and expenses
shall be borne by the indemnifying party.
The indemnifying party shall not be liable for any settlement of any action or
claim effected without its consent, which consent shall not be unreasonably
withheld.
(d) Contribution. If the indemnification provided for in
this Section 7 shall for any reason be unavailable to an indemnified party
under Section 7(a) or 7(b) hereof in respect of any loss, claim, damage or
liability or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Corporation on the one hand and the Agents on the other from
the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits
<PAGE> 24
24
referred to in clause (i) above but also the relative fault of the Corporation
on the one hand and the Agents on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Corporation on the one hand and either Agent
on the other with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Corporation bear to the total commissions
received by such Agent with respect to such offering. The relative fault of
the Corporation on the one hand and the Agents on the other shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Corporation or the Agents,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Corporation and the Agents agree that it would not be just and equitable if
contributions pursuant to this Section 7(d) were to be determined by pro rata
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such claim. Notwithstanding the provisions of
this Section 7(d), neither Agent shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes sold through
such Agent were offered to the public exceeds the amount of any damages which
such Agent has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(e) Survival of Indemnity and Contribution Agreements. The
respective indemnity and contribution agreements of the Corporation and the
Agents contained in this Section 7, and the representations and warranties of
<PAGE> 25
25
the Corporation set forth in Section 1 hereof, shall remain operative and in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of (i) either Agent or any
such controlling person of an Agent or (ii) the Corporation or any such
controlling person, director or officer of the Corporation and shall survive
the delivery of the Notes, and any successor of any Agent or of any such
controlling person or of the Corporation, or any legal representative of any
such controlling person, director or officer, as the case may be, shall be
entitled to the benefit of the respective indemnity and contribution
agreements.
SECTION 8. Status of Each Agent. In soliciting offers to
purchase the Notes from the Corporation pursuant to this Agreement (other than
offers to purchase pursuant to Section 11), each Agent is acting solely as
agent for the Corporation and not as principal. Each Agent will make
reasonable efforts to assist the Corporation in obtaining performance by each
purchaser whose offer to purchase Notes from the Corporation has been solicited
by such Agent and accepted by the Corporation, but such Agent shall have no
liability to the Corporation in the event any such purchase is not consummated
for any reason. If the Corporation shall default in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Corporation shall (i)
hold the Agents harmless against any loss, claim or damage arising from or as a
result of such default by the Corporation and (ii), in particular, pay to the
Agents any commission to which they would be entitled in connection with such
sale. The Corporation does not authorize either Agent to give any information
or make any representations, other than those contained in the Prospectus, as
from time to time amended or supplemented, in connection with the sale of the
Notes.
SECTION 9. Representations and Warranties to Survive
Delivery. All representations and warranties of the Corporation contained in
this Agreement, or contained in certificates of officers of the Corporation
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of the termination or cancellation of this Agreement or any
investigation made by or on behalf of either Agent or any person controlling
such Agent or by or on behalf of the Corporation, and shall survive each
delivery of and payment for any of the Notes.
<PAGE> 26
26
SECTION 10. Termination. This Agreement may be terminated
for any reason, at any time, by either the Corporation as to any Agent or an
Agent insofar as this Agreement relates to such Agent upon the giving of one
day's written notice of such termination to such Agent or the Corporation, as
the case may be. The provisions of Sections 3(c) (with respect to Notes that
have been sold but not yet delivered and with respect to Notes owned by an
Agent which were purchased from the Corporation by such Agent as principal with
the intention of reselling them), 3(h), 3(j), 4, 7, 8, 9, 13 and 14 hereof
shall survive any such termination.
SECTION 11. Purchases as Principal. From time to time an
Agent may agree with the Corporation to purchase Notes from the Corporation as
principal, in which case such purchase shall be made in accordance with the
terms of a separate agreement, which may be either an oral or written agreement
(a "Purchase Agreement"), to be entered into between such Agent and the
Corporation in the form attached hereto as Exhibit C or in such other form as
may be agreed to by the parties. A Purchase Agreement, to the extent set forth
therein, may incorporate by reference specified provisions of this Agreement.
In connection with any resale of Notes purchased by the Agents, the Agents may
use a selling or dealer group and may reallow any portion of the commission
payable pursuant hereto to dealers or purchasers.
SECTION 12. Sales of Securities Denominated in a Foreign
Currency. If at any time the Corporation and any of the Agents shall determine
to issue and sell Notes denominated in a currency or currency unit other than
U.S. dollars, which other currency may include a composite currency, the
Corporation and such Agent shall execute and deliver a Foreign Currency
Amendment in the form attached hereto as Exhibit D. The Foreign Currency
Amendment shall establish, as appropriate, additions and modifications to this
Agreement that shall apply to the sales, whether offered on an agency or
principal basis, of all Notes denominated in the currency or currency unit
covered thereby.
SECTION 13. Notices. Except as otherwise provided herein,
all notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if sent by registered mail or transmitted by any
standard form of telecommunication. Notices to the Agents shall be directed to
them as follows: Lehman Brothers, Lehman Brothers Inc., 3 World
<PAGE> 27
27
Financial Center, New York, New York 10285-1200, Attention: Medium-Term Note
Department, 12th Floor; and Goldman, Sachs & Co., 85 Broad Street, New York,
New York 10004, Attention: Credit Department. Notice to the Corporation shall
be directed to it as follows: Air Products and Chemicals, Inc., 7201 Hamilton
Boulevard, Allentown, Pennsylvania 18195-1501, Attention: Corporate Secretary.
SECTION 14. Binding Effect; Benefits. This Agreement shall
be binding upon each Agent, the Corporation, and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except that (a) the indemnity agreement of the Corporation
contained in Section 7 hereof shall also be deemed to be for the benefit of the
person or persons, if any, who control the Agents within the meaning of Section
15 of the Securities Act, and (b) the indemnity agreement of the Agents
contained in Section 7 hereof shall be deemed to be for the benefit of
directors of the Corporation, officers of the Corporation who have signed the
Registration Statement and any persons controlling the Corporation within the
meaning of Section 15 of the Securities Act. Nothing in this Agreement is
intended or shall be considered to give any person, other than the persons
referred to in this Section, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein. The
term "successor" or the term "successors and assigns" as used in this Agreement
shall not include any purchaser (in its capacity of purchaser) of any of the
Notes.
SECTION 15. Governing Law; Counterparts. This Agreement
shall be governed by and construed in accordance with the laws of New York.
This Agreement may be executed in counterparts and the executed counterparts
shall together constitute a single instrument.
<PAGE> 28
28
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
AIR PRODUCTS AND CHEMICALS, INC.,
by
-------------------------------
Title: Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of the
date first above written:
LEHMAN BROTHERS INC.
by
-------------------------
GOLDMAN, SACHS & CO.
by
-------------------------
<PAGE> 29
EXHIBIT A
AIR PRODUCTS AND CHEMICALS, INC.
Medium-Term Notes, Series D
Schedule of Payments
The Corporation agrees to pay each Agent a commission equal to
the following percentage of the aggregate U.S. dollar equivalent of the
principal amount of Notes sold by such Agent:
<TABLE>
<CAPTION>
Term Commission Rate
- ---- ---------------
<S> <C>
9 months to less than 12 months .125%
---------
12 months to less than 18 months .150%
---------
18 months to less than 2 years .200%
---------
2 years to less than 3 years .250%
---------
3 years to less than 4 years .350%
---------
4 years to less than 5 years .450%
---------
5 years to less than 6 years .500%
---------
6 years to less than 7 years .550%
---------
7 years to less than 10 years .600%
---------
10 years or more .625%
---------
</TABLE>
<PAGE> 30
EXHIBIT B
MEDIUM-TERM NOTES, SERIES D
ADMINISTRATIVE PROCEDURES
Medium-Term Notes, Series D Due from 9 months to 20 years from
date of issue (the "Notes") are to be offered on a continuing basis by Air
Products and Chemicals, Inc. (the "Corporation") through Lehman Brothers, a
division of Lehman Brothers Inc., and Goldman, Sachs & Co., and such other
agents as the Corporation shall appoint from time to time on terms
substantially identical to those set forth in the Agency Agreement (each an
"Agent", and, collectively, the "Agents"), who, as agents have agreed to use
their reasonable best efforts to solicit offers to purchase the Notes from the
Corporation. The Agents may also purchase Notes as principal for resale.
The Notes are being sold pursuant to an Agency Agreement
between the Corporation and the Agents dated , 1995 (as it may be
amended from time to time, the "Agency Agreement") to which these
administrative procedures are attached as an exhibit. The Corporation has
reserved the right to sell Notes directly on its own behalf. The Notes will be
issued pursuant to an Indenture, dated as of January 10, 1995, (as it may be
amended or supplemented from time to time, the "Indenture"), between the
Corporation and First Fidelity Bank, National Association, as trustee (the
"Trustee"). The Notes will rank equally with all other unsecured and
unsubordinated indebtedness of the Corporation and will have been registered
with the Securities and Exchange Commission (the "Commission"). A Registration
Statement (the "Registration Statement") with respect to the Notes has been
filed with the Commission. The Prospectus included in the Registration
Statement that describes the terms of the Notes, as supplemented from time to
time, is herein referred to as the "Prospectus Supplement". The supplement to
the Prospectus that sets forth the specific terms of the Notes is herein
referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and
represented by one or more fully registered Notes (each, a "Book-Entry Note")
delivered to the Trustee, as agent for The Depository Trust Corporation
("DTC"), and recorded in the book-entry system maintained by DTC, or (b) in
certificated form delivered to the purchaser thereof or a person designated by
such purchaser. Only Notes denominated in U.S. dollars may be issued as
Book-Entry
<PAGE> 31
2
Notes. Owners of beneficial interests in Notes issued in book-entry form will
be entitled to physical delivery of Notes in certificated form equal in
principal amount to their respective beneficial interests only upon certain
limited circumstances described in the Prospectus Supplement.
General procedures relating to the issuance of all Notes are
set forth in Part I hereof. Additionally, Notes issued in book-entry form will
be issued in accordance with the procedures set forth in Part II hereof and
Notes issued in certificated form will be issued in accordance with the
procedures set forth in Part III hereof. Capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in the
Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
<TABLE>
<S> <C>
Price to Public: Each Note will be issued at 100% of principal amount,
unless otherwise determined by the Corporation.
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: authentication by the Trustee. Each Note shall
also bear an original issue date (the "Original
Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
</TABLE>
<PAGE> 32
3
<TABLE>
<S> <C>
Maturities: Each Note will mature on a Business Day (as defined
below) selected by the purchaser and agreed to by
the Corporation which is not less than nine months
nor more than twenty years from its Original Issue
Date; provided, however, that Notes bearing
interest at rates determined by reference to
selected indices ("Floating Rate Notes") will
mature on an Interest Payment Date.
Registration: Notes will be issued only in fully registered form.
Calculation of In the case of Fixed Rate Notes, interest (including
Interest: payments for partial periods) will be calculated
and paid on the basis of a 360-day year of twelve
30-day months. In the case of Floating Rate Notes,
interest will be calculated in the manner set forth
in the Prospectus Supplement.
Acceptance and The Corporation shall have the sole right to accept
Rejection of offers to purchase Notes from the Corporation and
Offers: may reject any such offer in whole or in part.
Each Agent shall communicate to the Corporation,
orally or in writing, each reasonable offer to
purchase Notes from the Corporation received by it.
Each Agent shall have the right, in its discretion
reasonably exercised, without notice to the
Corporation, to reject any offer to purchase Notes
through it in whole or in part.
Preparation of If any offer to purchase a Note is accepted by the
Pricing Corporation, the Corporation, with the approval of
Supplement: the Agent which presented such
</TABLE>
<PAGE> 33
4
<TABLE>
<S> <C>
offer (the "Presenting Agent"), will prepare a Pricing
Supplement (a "Pricing Supplement") reflecting the terms of
such Note and file 10 Pricing Supplements relating to the
Notes and the plan of distribution thereof with the
commission in accordance with Rule 424 under the Securities
Act of 1933 and will supply by next day mail or telecopy at
least one copy thereof (and additional copies if requested)
to the Presenting Agent to arrive no later than 11:00 a.m.
on the Business Day following the trade date or as soon as
practicable thereafter under the circumstances. The
Presenting Agent will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser of the Note.
Such Prospectus and Pricing Supplement will be delivered to
the Presenting Agent at the following applicable address:
If to Lehman Brothers Inc., by telecopy to Lehman Brothers,
Prospectus Delivery Department, Attention: Andrea Springer,
Telecopy: (212) 464-6960 and by hand to Lehman Brothers
Inc., Medium-Term Note Department, American Express Tower,
200 Vessey Street, 9th Floor, New York, N.Y. 10285, if to
Goldman Sachs & Co. by telecopy and by hand to Goldman
Sachs & Co., 85 Broad Street, 27th Floor, New York,
N.Y. 10004, Attention: Patricia O'Connell, Telephone:
(212) 902-1482, Telecopy: (212) 902-0658; and if any other
agent, at such address as they shall specify.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to the Prospectus
prior to their
</TABLE>
<PAGE> 34
5
<TABLE>
<S> <C>
use. Outdated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained for
files) will be destroyed.
Settlement: The receipt of immediately available funds in U.S. dollars
by the Corporation in payment for a Note and the
authentication and delivery of such Note shall, with
respect to such Note, constitute "settlement". Offers
accepted by the Corporation will be settled from one to
five Business Days, or at a time as the purchaser and the
Corporation shall agree, pursuant to the timetable for
settlement set forth in Parts II and III hereof under
"Settlement Procedures" with respect to Book-Entry Notes
and Certificated Notes, respectively.
In the event of a purchase of Notes by any Agent as
principal, appropriate settlement details will be as agreed
between the Agent and the Corporation pursuant to the
applicable Purchase Agreement. In the event of sales of
any Notes denominated in a foreign currency or currency
unit, reference is made to Section 12 of the Agency
Agreement regarding amendments to the Agency Agreement
(including these Administrative Procedures) for sales of
Notes so denominated.
Procedure for When a decision has been reached to: change the posted
Changing Rates interest rate, spread, the Specified Currency or any other
or other Variable variable term on any Notes being sold by the Corporation,
Terms: the Corporation will promptly advise the Agents and the
Agents will forthwith suspend solicitation of offers to
purchase such Notes. The Agents will
</TABLE>
<PAGE> 35
6
<TABLE>
<S> <C>
telephone the Corporation with recommendations as to the
changed interest rates or other variable terms. At such
time as the Corporation advises the Agents of the new
posted interest rates, spread or other variable terms, the
Agents may resume solicitation of offers to purchase such
Notes. Until such time only "indications of interest" may
be recorded. Immediately after acceptance by the
Corporation of an offer to purchase at a new posted
interest rate, spread or new variable term, the
Corporation, the Presenting Agent and the Trustee shall
follow the procedures set forth under the applicable
"Settlement Procedures".
Suspension of The Corporation may instruct the Agents to suspend
Solicitation; solicitation of purchases at any time. Upon receipt of
Amendment or such instructions the Agents will forthwith suspend
Supplement: solicitation of offers to purchase from the Corporation
until such time as the Corporation has advised them that
solicitation of offers to purchase may be resumed. If the
Corporation decides to amend the Registration Statement
(including incorporating any documents by reference
therein) or supplement any of such documents (other than to
change posted interest rates, spreads or other variable
terms), it will notify the Agents and will furnish the
Agents and their counsel with copies of the amendment or
supplement in accordance with Section 3 of the Agency
Agreement. One copy of such filed document, along with a
copy of the cover letter sent to the Commission, will be
delivered or mailed to the Agents at the following
respective addresses:
</TABLE>
<PAGE> 36
7
<TABLE>
<S> <C>
Lehman Brothers, Medium-Term Note Department, 3 World Financial
Center (12th Floor), New York, N.Y. 10285-1200; and Goldman
Sachs & Co., 85 Broad Street, 27th Floor, New York, N.Y. 10004,
Attention: Patricia O'Connell.
In the event that at the time the solicitation of offers to
purchase from the Corporation is suspended (other than to
change the posted interest rates, spreads or other variable
terms) there shall be any orders outstanding which have not
been settled, the Corporation will promptly advise the
Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as theretofore amended
and/or supplemented as in effect at the time of the
suspension may be delivered in connection with the
settlement of such orders. The Corporation will have the
sole responsibility for such decision and for any
arrangements which may be made in the event that the
Corporation determines that such orders may not be settled
or that copies of such Prospectus may not be so delivered.
Delivery of A copy of the most recent Prospectus, Prospectus Supplement
Prospectus: and Pricing Supplement must accompany or precede the
earlier of (a) the written confirmation of a sale sent to a
customer or his agent and (b) the delivery of Notes to a
customer or his agent.
Authenticity of The Corporation will provide to the Trustee a list of the
Signatures: names of its representatives that are authorized to
communicate the purchase information and to confirm such
</TABLE>
<PAGE> 37
8
<TABLE>
<S> <C>
purchase information. The Trustee will provide to the
Corporation and the Agents a list of its representatives
who are authorized to take all necessary action to complete
the terms of the Notes and to otherwise complete the
procedures set forth herein that are applicable to the
Trustee, but the Agents will have no obligation or
liability to the Corporation or the Trustee in respect of
the authenticity of the signature of any officer, employee
or agent of the Corporation or the Trustee on any Note.
Documents Incorpo- The Corporation shall supply the Agents with an adequate
rated by supply of all documents incorporated by reference in the
Reference: Registration Statement.
Business Day: "Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or
regulation to close in New York, New York, or (i) with
respect to Notes denominated in a Foreign Currency, the
principal financial center of the country of the Foreign
Currency, (ii) with respect to Notes denominated in
European Currency Units, Brussels, Belgium, or (iii) with
respect to Notes which will bear interest based on a
specified percentage of London interbank offered quotations
("LIBOR"), London, England.
Advertising Costs: The Corporation will determine with the Agents the amount
and nature of advertising that may be appropriate in
offering the Notes. Advertising expenses incurred with the
consent
</TABLE>
<PAGE> 38
9
<TABLE>
<S> <C>
of the Corporation will be paid by the Corporation.
Trustee Not To Nothing herein shall be deemed to require the Trustee to
Risk Funds: use or any payments to the Corporation, the Agents or any
purchaser, it being understood by all parties that payments
made by the Trustee to the Corporation, the Agents or any
purchaser shall be made only to the extent that funds are
provided to the Trustee for such purpose.
</TABLE>
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in
book-entry form for eligibility in the book-entry system maintained by DTC,
the Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under
a Letter of Representations from the Corporation and the Trustee to DTC dated
, , and a Medium-Term Note Certificate Agreement dated (the
"Certificate Agreement"), between the Trustee and DTC, and its obligations as
a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
<TABLE>
<S> <C>
Issuance: All Fixed Rate Notes issued in book-entry form having the
same Original Issue Date, interest rate and Maturity Date,
and if a Currency Indexed Note, the same Specified
Currency, Indexed Currency and Base Exchange Rate and if a
Commodity Indexed Note, the same comparable terms
(collectively, the "Fixed Rate Terms") will be represented
initially by a single global security in fully registered
form without coupons (each, a "Book-Entry Note"); and all
Floating Rate Notes issued in book-entry form having the
same Original
</TABLE>
<PAGE> 39
10
<TABLE>
<S> <C>
Issue Date, base rate upon which interest may be
determined (each, a "Base Rate"), which may be the
Commercial Paper Rate, the Treasury Rate, LIBOR, or any
other rate set forth by the Corporation, Initial Interest
Rate, Index Maturity, Spread or Spread Multiplier, if any,
minimum interest rate, if any, maximum interest rate, if
any, and Maturity Date, and if a Currency Indexed Note,
the same Specified Currency, Indexed Currency and Base
Exchange Rate and if a Commodity Indexed Note, the same
comparable terms (collectively, "Floating Rate Terms")
will be represented initially by a single Book-Entry Note.
Each Book-Entry Note will be dated and issued as of the
date of its authentication by the Trustee. Each Book-
Entry Note will bear an Original Issue Date, which will be
(a) with respect to an original Book-Entry Note (or any
portion thereof), its Original Issue Date and (b) with
respect to any Book-Entry Note (or portion thereof) issued
subsequently upon exchange of a Book-Entry Note or in lieu
of a destroyed, lost or stolen Book-Entry Note, the most
recent Interest Payment Date to which interest has been
paid or duly provided for on the predecessor Book-Entry
Note or Notes (or if no such payment or provision has been
made, the Original Issue Date of the predecessor Book-
Entry Note or Notes), regardless of the date of
authentication of such subsequently issued Book-Entry
Note. No Book-Entry Note shall represent any Note issued
in certificated form.
</TABLE>
<PAGE> 40
11
<TABLE>
<S> <C>
Identification: The Corporation has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of approximately 900 CUSIP
numbers which have been reserved for and which relate to
Book-Entry Notes and the Corporation has delivered to the
Trustee and DTC such list of such CUSIP numbers. The
Corporation will assign CUSIP numbers to Book-Entry Notes
as described below under Settlement Procedure B. DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Corporation has assigned to Book-Entry
Notes. The Trustee will notify the Corporation at any
time when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Book-Entry Notes and, if it deems
necessary, the Corporation will reserve additional CUSIP
numbers for assignment to Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the Corporation
will deliver a list of such additional numbers to the
Trustee and DTC. Book-Entry Notes having an aggregate
principal amount in excess of $150,000,000 and otherwise
required to be represented by the same Global Certificate
will instead be represented by two or more Global
Certificates which shall all be assigned the same CUSIP
number.
Registration: Each Book-Entry Note will be registered in the name of
Cede & Co., as nominee for DTC, on the register maintained
by the Trustee under the Indenture. The beneficial owner
of a Note issued in book-entry form (or one or more
indirect participants in DTC
</TABLE>
<PAGE> 41
12
<TABLE>
<S> <C>
designated by such owner) will designate one or more
participants in DTC (with respect to such Note issued in
book-entry form, the "Participants") to act as agent for
such beneficial owner in connection with the book-entry
system maintained by DTC, and DTC will record in book-
entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such
Note issued in book-entry form in the account of such
Participants. The ownership interest of such beneficial
owner in such Note issued in book-entry form will be
recorded through the records of such Participants or
through the separate records of such Participants and one
or more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants
in DTC) acting on behalf of beneficial transferors and
transferees of such Book-Entry Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a) the
CUSIP numbers of two or more Book-Entry Notes outstanding
on such date that represent Book-Entry Notes having the
same Fixed Rate Terms or Floating Rate Terms, as the case
may be (other than Original Issue Dates), and for which
interest has been paid to the same date; (b) a date,
occurring at least 30 days
</TABLE>
<PAGE> 42
13
<TABLE>
<S> <C>
before the next Interest Payment Date for the related
Notes issued in book-entry form, on which such Book-Entry
Notes shall be exchanged for a single replacement Book-
Entry Note; and (c) a new CUSIP number, obtained from the
Corporation, to be assigned to such replacement Book-Entry
Note. Upon receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written
reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange
date, the Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and the
new CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Book-Entry Notes to be
exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Book-Entry
Notes for a single Book-Entry Note bearing the new CUSIP
number and the CUSIP numbers of the exchanged Book-Entry
Notes will, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned.
Notwithstanding the foregoing, if the Book-Entry Notes to
be exchanged exceed $150,000,000 in aggregate principal
amount, one replacement Book-Entry Note will be
authenticated and issued to represent $150,000,000 of
principal amount of the exchanged Book-Entry Notes and an
additional Book-Entry Note or Notes will be authenticated
and issued to represent any remaining principal amount of
such Book-Entry Notes (See "Denominations" below).
</TABLE>
<PAGE> 43
14
<TABLE>
<S> <C>
Denominations: All Notes issued in book-entry form will be denominated in
U.S. dollars. Notes issued in book-entry form will be
issued in denominations of $100,000 and any larger
denomination which is an integral multiple of $1,000.
Book-Entry Notes will be denominated in principal amounts
not in excess of $150,000,000. If one or more Notes
issued in book-entry form having an aggregate principal
amount in excess of $150,000,000 would, but for the
preceding sentence, be represented by a single Book-Entry
Note, then one Book-Entry Note will be issued to represent
$150,000,000 principal amount of such Note or Notes issued
in book-entry form and an additional Book-Entry Note or
Notes will be issued to represent any remaining principal
amount of such Note or Notes issued in book-entry form.
In such a case, each of the Book-Entry Notes representing
such Note or Notes issued in book-entry form shall be
assigned the same CUSIP number.
Interest: General. Interest, if any, on each Note issued in
book-entry form will accrue from the Original Issue Date
for the first interest period or the last date to which
interest has been paid, if any, for each subsequent
interest period. Each payment of interest on a Note
issued in book-entry form will include interest accrued
through the day preceding, as the case may be, the
Interest Payment Date (provided that in the case of
Floating Rate Notes which reset daily or weekly, interest
payments will include interest accrued to but excluding
the Record Date
</TABLE>
<PAGE> 44
15
<TABLE>
<S> <C>
immediately preceding the Interest Payment Date), or to
but excluding the Maturity Date (each Maturity Date is
referred to herein as "Maturity"). Interest payable at
Maturity of a Note issued in book-entry form will be
payable to the person to whom the principal of such Note
is payable. DTC will arrange for each pending deposit
message described under Settlement Procedure C below to be
transmitted to Standard & Poor's, which will use the
information in the message to include certain terms of the
related Book-Entry Note in the appropriate daily bond
report published by Standard & Poor's Corporation.
Record Dates. The record date (the "Record Date") with
respect to any Interest Payment Date shall be the date 15
calendar days (whether or not a Business Day) preceding
such Interest Payment Date.
Interest Payment Dates. Interest payments will be made on
each Interest Payment Date commencing with the first
Interest Payment Date following the Original Issue Date;
provided, however, the first payment of interest on any
Book-Entry Note originally issued between a Record Date
and an Interest Payment Date will occur on the Interest
Payment Date following the next Record Date.
If an Interest Payment Date with respect to any Floating
Rate Note issued in book-entry form would otherwise fall
on a day that is not a Business Day with respect to such
Note, such Interest Payment Date will be the following day
</TABLE>
<PAGE> 45
16
<TABLE>
<S> <C>
that is a Business Day with respect to such Note, except
that in the case of a LIBOR Note, if such day falls in the
next calendar month, such Interest Payment Date will be
the preceding day that is a London Business Day.
Fixed Rate Notes. Interest payments on Fixed Rate Notes
issued in book-entry form will be made semiannually on
June 15 and December 15 of each year unless otherwise
specified in such Note, and at Maturity.
Floating Rate Notes. Interest payments on Floating Rate
Notes issued in book-entry form will be made as specified
in the Floating Rate Note.
Notice of Interest Payments and Record Dates. On the
first Business Day of January, April, July and October of
each year, the Trustee will deliver to the Corporation and
DTC a written list of Record Dates and Interest Payment
Dates that will occur during the six-month period
beginning on such first Business Day with respect to
Floating Rate Notes issued in book-entry form. Promptly
after each Interest Determination Date for Floating Rate
Notes issued in book-entry form, the Trustee will notify
Standard & Poor's Corporation of the interest rates
determined on such Interest Determination Date.
Payments of Payments of Interest Only. Promptly after each Record
Principal Date, the Trustee will deliver to the Corporation and DTC
and Interest: a written notice specifying by CUSIP number the amount of
interest to be paid
</TABLE>
<PAGE> 46
17
<TABLE>
<S> <C>
on each Book-Entry Note on the following Interest Payment
Date (other than an Interest Payment Date coinciding with
Maturity) and the total of such amounts. DTC will confirm
the amount payable on each Book-Entry Note on such
Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Corporation. On
such Interest Payment Date, the Corporation will pay to
the Trustee, and the Trustee in turn will pay to DTC, such
total amount of interest due (other than at Maturity), at
the times and in the manner set forth below under "Manner
of Payment".
Payments at Maturity. On or about the first Business Day
of each month, the Trustee will deliver to the Corporation
and DTC a written list of principal, interest and premium,
if any, to be paid on each Book-Entry Note maturing either
at the Maturity Date or on a Redemption Date in the
following month. The Trustee, the Corporation and DTC
will confirm the amounts of such principal and interest
payments with respect to a Book-Entry Note on or about the
fifth Business Day preceding the Maturity of such Book-
Entry Note. At such Maturity, the Corporation will pay to
the Trustee, and the Trustee in turn will pay to DTC, the
principal amount of such Note, together with interest and
premium, if any, due at such Maturity, at the times and in
the manner set forth below under "Manner of Payment". If
any Maturity of a Book-Entry Note is not a Business Day,
the payment due on such day shall be made on the next
succeeding Business Day
</TABLE>
<PAGE> 47
18
<TABLE>
<S> <C>
and no interest shall accrue on such payment for the
period from and after such Maturity. Promptly after
payment to DTC of the principal, interest and premium, if
any, due at the Maturity of such Book-Entry Note, the
Trustee will cancel such Book-Entry Note and deliver it to
the Corporation with an appropriate debit advice. On the
first Business Day of each month, the Trustee will deliver
to the Corporation a written statement indicating the
total principal amount of outstanding Book-Entry Notes as
of the immediately preceding Business Day.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Book-Entry Notes on
any Interest Payment Date or at Maturity shall be paid by
the Corporation to the Trustee in funds available for use
by the Trustee as of 9:30 a.m., New York City time, on
such date. The Corporation will make such payment on such
Book-Entry Notes by instructing the Trustee to withdraw
funds from an account maintained by the Corporation at the
Trustee. The Corporation will confirm such instructions
in writing to the Trustee. Prior to 10:00 a.m., New York
City time, on such date or as soon as possible thereafter,
the Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously
specified by DTC) to an account at the Federal Reserve
Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of
interest, principal and premium, if any, due
</TABLE>
<PAGE> 48
19
<TABLE>
<S> <C>
on a Book-Entry Note on such date. Thereafter on such
date, DTC will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds available
for immediate use to the respective Participants in whose
names such Notes are recorded in the book-entry system
maintained by DTC. Neither the Corporation nor the
Trustee shall have any responsibility or liability for the
payment by DTC of the principal of, or interest on, the
Book-Entry Notes to such Participants.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on
a Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible
for forwarding payments and materials directly to the
beneficial owner of such Note.
Settlement Settlement Procedures with regard to each Note in book-
Procedures: entry form sold by each Agent, as agent of the
Corporation, will be as follows:
A. The Presenting Agent will advise the Corporation in
writing, by telex or facsimile, or by telephone
(with written confirmation on the next Business Day)
of the following Settlement information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount of the Note.
</TABLE>
<PAGE> 49
20
<TABLE>
<S> <C>
3.1 Fixed Rate Notes:
(a) interest rate.
3.2 Floating Rate Notes:
(a) base rate;
(b) initial interest rate;
(c) spread or spread multiplier, if
any;
(d) interest reset dates;
(e) reset period;
(f) interest payment dates;
(g) index maturity;
(h) calculation agent;
(i) maximum interest rate, if any;
(j) minimum interest rate, if any; and
(k) interest determination dates.
3.3 Currency Indexed Notes:
(a) specified currency
(b) indexed currency
(c) face amount
(d) base exchange rate
(e) determination agent
(f) reference dealers
(g) base interest rate, if any
3.4 Commodity Indexed Note:
(a) applicable terms
4. Price to public of the Note.
5. Trade date.
6. Settlement Date.
7. Maturity Date.
</TABLE>
<PAGE> 50
21
<TABLE>
<S> <C>
8. Redemption or repayment provisions, if any.
9. Net proceeds to the Corporation.
10. Agent's commission (to be paid in the form
of a discount from the proceeds remitted to
the Corpor-ation upon Settlement).
11. If applicable, total amount of original
issue discount ("OID"), yield to maturity
and the initial accrual period OID.
12. Any other provisions.
B. The Corporation will assign a CUSIP number to the
Book-Entry Note representing such Note and then
advise the Trustee by electronic transmission of the
above settlement information received from the
Presenting Agent, such CUSIP number and the name of
the Agent.
C. The Trustee will communicate to DTC and the Agent
through DTC's Participant Terminal System, a pending
deposit message specifying the following settlement
information:
1. The information set forth in Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of the
Trustee and the Agent.
3. Identification as a Fixed Rate Book-Entry
Note or a
</TABLE>
<PAGE> 51
22
<TABLE>
<S> <C>
Floating Rate Book-Entry Note.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds
the related record date for DTC purposes
(or, in the case of Floating Rate Notes
which reset daily or weekly, the date five
calendar days preceding the Interest Payment
Date) and, if then calculable, the amount of
interest payable on such Interest Payment
Date (which amount shall have been confirmed
by the Trustee).
5. CUSIP number of the Book-Entry Note
representing such Note.
6. Whether such Book-Entry Note represents any
other Notes issued or to be issued in book-
entry form.
D. The Corporation will provide to the Trustee the
above Settlement information received from the Agent
and shall cause the Trustee to issue and
authenticate a Book-Entry Note representing such
Note in a form that has been approved by the
Corporation, the Agents and the Trustee.
E. The Trustee will authenticate the Book-Entry Note
representing such Note.
F. DTC will credit such Note to the participant account
of the Trustee maintained by DTC.
</TABLE>
<PAGE> 52
23
<TABLE>
<S> <C>
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to the Trustee's participant
account and credit such Note to the participant
account of the Presenting Agent maintained by DTC
and (ii) to debit the settlement account of the
Presenting Agent and credit the settlement account
of the Trustee maintained by DTC, in an amount equal
to the price of such Note less such Agent's
commission. Any entry of such a deliver order shall
be deemed to constitute a representation and
warranty by the Trustee to DTC that (i) the Book-
Entry Note representing such Note has been issued
and authenticated and (ii) the Trustee is holding
such Book-Entry Note pursuant to the Medium-Term
Note Certificate Agreement between the Trustee and
DTC.
H. The Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and credit
such Note to the participant account of the
Participants maintained by DTC and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of the Presenting Agent
maintained by DTC, in an amount equal to the initial
public offering price of such Note.
I. Transfers of funds in accordance with SDFS deliver
</TABLE>
<PAGE> 53
24
<TABLE>
<S> <C>
orders described in Settlement Procedures G and H
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Trustee will credit to an account of the
Corporation maintained at the Trustee funds
available for immediate use in the amount
transferred to the Trustee in accordance with
Settlement Procedure G.
K. The Trustee will send a copy of the Book-Entry Note
by first class mail to the Corporation together with
a statement setting forth the principal amount of
Notes outstanding as of the related Settlement Date
after giving effect to such transaction and all
other offers to purchase Notes of which the
Corporation has advised the Trustee but which have
not yet been settled.
L. The Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participant with respect to such Note a confirmation
order through DTC's Participant Terminal System or
by mailing a written confirmation to such purchaser.
Settlement Proce- For orders of Notes accepted by the Corporation,
dures Timetable: Settlement Procedures "A" through "L" set forth above
shall be completed as soon as possible but not later than
the respective times (New York City time) set forth below:
</TABLE>
<PAGE> 54
25
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A-B 11:00 a.m. on the trade date
C 2:00 p.m. on the trade date
D 3:00 p.m. on the Business
Day before Settlement Date
E 9:00 a.m. on Settlement
Date
F 10:00 a.m. on Settlement
Date
G-H No later than 2:00 p.m. on
Settlement Date
I 4:45 p.m. on Settlement
Date
J-L 5:00 p.m. on Settlement
Date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures A, B, and C
may, if necessary, be completed at any time prior to the
specified times on the first Business Day after such sale
date. In connection with a sale which is to be settled
more than one Business Day after the trade date, if the
initial interest rate for a Floating Rate Note is not
known at the time that Settlement Procedure A is
completed, Settlement Procedures B and C shall be
completed as soon as such rates have been determined, but
no later than 11:00 a.m. and 2:00 p.m., New York City
time, respectively, on the second Business Day before the
Settlement Date. Settlement Procedure I is subject to
extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in the
SDFS operating procedures in effect on the Settlement
Date.
</TABLE>
<PAGE> 55
26
<TABLE>
<S> <C>
If settlement of a Note issued in book-entry form is
rescheduled or canceled, the Trustee will deliver to DTC,
through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m., New
York City time, 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 Note issued in book-entry form
pursuant to Settlement Procedure G, the Trustee may
deliver to DTC, through DTC's Participant Terminal System,
as soon as practicable a withdrawal message instructing
DTC to debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant account
contains a principal amount of the Book-Entry Note
representing such Note that is at least equal to the
principal amount to be debited. If withdrawal messages
are processed with respect to all the Notes represented by
a Book-Entry Note, the Trustee will mark such Book-Entry
Note "canceled", make appropriate entries in its records
and send such canceled Book-Entry Note to the Corporation.
The CUSIP number assigned to such Book-Entry Note shall,
in accordance with CUSIP Service Bureau procedures, be
cancelled and not immediately reassigned. If withdrawal
messages are processed with respect to a portion of the
Notes represented by a Book-Entry Note, the Trustee will
exchange such Book-Entry Note
</TABLE>
<PAGE> 56
27
<TABLE>
<S> <C>
for two Book-Entry Notes, one of which shall represent the
Book-Entry Notes for which withdrawal messages are
processed and shall be canceled immediately after
issuance, and the other of which shall represent the other
Notes previously represented by the surrendered Book-Entry
Note and shall bear the CUSIP number of the surrendered
Book-Entry Note. If the purchase price for any Book-Entry
Note is not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC, acting
on behalf of such purchaser), such Participants and, in
turn, the related Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures G and H,
respectively. Thereafter, the Trustee will deliver the
withdrawal message and take the related actions described
in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the
applicable Agent to perform its obligations hereunder or
under the Distribution Agreement, the Corporation will
reimburse such Agent on an equitable basis for its loss of
the use of funds during the period when the funds were
credited to the account of the Corporation. An Agent will
not be entitled to any commission with respect to any Note
which the purchaser does not accept or make payment for.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC
</TABLE>
<PAGE> 57
28
<TABLE>
<S> <C>
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 a Note that was to have been
represented by a Book-Entry Note also representing other
Notes, the Trustee will provide, in accordance with
Settlement Procedure E, for the authentication and
issuance of a Book-Entry Note representing such remaining
Notes and will make appropriate entries in its records.
</TABLE>
PART III: PROCEDURES FOR NOTES ISSUED
IN CERTIFICATED FORM
<TABLE>
<S> <C>
Denominations: The Notes will be issued in denominations of U.S. $100,000
and integral multiples of U.S. $1,000 in excess thereof,
or, in the case of Notes denominated in a Specified
Currency other than U.S. dollars, the denominations set
forth in the Prospectus Supplement and the applicable
Pricing Supplement.
Interest: Each Note will bear interest in accordance with its terms.
Interest will begin to accrue on the original issue date
of a Note for the first interest period and on the most
recent interest payment date to which interest has been
paid for all subsequent interest periods. Each payment of
interest shall include interest accrued to, but excluding,
the date of such payment. Interest payments in respect of
Fixed Rate Notes will be made semiannually on June 15 and
December 15 of each year unless otherwise specified in
such Note, and at maturity.
</TABLE>
<PAGE> 58
29
<TABLE>
<S> <C>
However, the first payment of interest on any Note issued
between a Record Date and an Interest Payment Date will be
made on the Interest Payment Date following the next
succeeding Record Date. The record date (the "Record
Date") for any Interest Payment Date shall be the date
(whether or not a Business Day) 15 calendar days
immediately preceding such Interest Payment Date.
Interest at maturity will be payable to the person to whom
the principal is payable.
Notwithstanding the above, in the case of Floating Rate
Notes which reset daily or weekly, interest payments shall
include accrued interest from, and including, the date of
issue or from, but excluding, the last date in respect of
which interest has been accrued and paid, as the case may
be, through, and including, the Record Date, except that
at maturity the interest payable will include interest
accrued to, but excluding, the maturity date. For
additional special provisions relating to Floating Rate
Notes, see the Prospectus Supplement.
Payments of Princi- Upon presentment and delivery of the Note, the Trustee
pal and Interest: will pay the principal amount of each Note at maturity and
the final installment of interest in immediately available
funds. All interest payments on a Note, other than
interest due at maturity, will be made by check drawn on
the Trustee and mailed by the Trustee to the person
entitled thereto as provided in the Note. However,
holders of Notes of like tenor and terms in aggregate
principal amount exceeding U.S. $5
</TABLE>
<PAGE> 59
30
<TABLE>
<S> <C>
million or the equivalent thereof in a Specified Currency
shall be entitled to receive payments of interest, other
than at maturity, by wire transfer of immediately
available funds to an account maintained by such holder
with a bank located in the United States for payments in
U.S. Dollars or the country of the Specified Currency for
other payments, provided that appropriate wire transfer
instructions have been received in writing by the Trustee
not less than 15 calendar days prior to the applicable
Interest Payment Date. Any payment of principal or
interest required to be made on an Interest Payment Date
or at maturity of a Note which is not a Business Day need
not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as
if made on the Interest Payment Date or at maturity, as
the case may be, and no interest shall accrue for the
period from and after such Interest Payment Date or
maturity.
The Trustee will provide monthly to the Corporation a list
of the principal and interest (and premium, if any) in
each currency to be paid on Notes maturing in the next
succeeding month. The Trustee will be responsible for
withholding taxes on interest paid as required by
applicable law.
Notes presented to the Trustee at maturity for payment
will be canceled by the Trustee. All canceled Notes held
by the Trustee shall be destroyed, and the Trustee shall
furnish to the
</TABLE>
<PAGE> 60
31
<TABLE>
<S> <C>
Corporation a certificate with respect to such
destruction.
Settlement Proce- Settlement Procedures with regard to each Note purchased
dures: through any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Corporation
in writing, by telex or facsimile, or by telephone (with
written confirmation on the next Business Day) of the
following Settlement information with regard to each Note:
1. Exact name in which the Note is to be registered
(the "Registered Owner").
2. Exact address or addresses of the Registered Owner
for delivery, notices and payments of principal and
interest.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6.1 Fixed Rate Notes:
(a) interest rate.
6.2 Floating Rate Notes:
(a) base rate;
(b) initial interest rate;
(c) spread or spread multiplier, if any;
(d) interest reset dates;
(e) reset period;
</TABLE>
<PAGE> 61
32
<TABLE>
<S> <C>
(f) interest payment dates;
(g) index maturity;
(h) calculation agent;
(i) maximum interest rates, if
any; and
(j) minimum interest rate, if
any.
(k) interest determination dates
6.3 Currency Indexed Notes:
(a) specified currency
(b) indexed currency
(c) face amount
(d) base exchange rate
(e) determination agent
(f) reference dealers
(g) base interest rate, if any
6.4 Commodity Indexed Note:
(a) applicable terms
7. Price to public of the Note (including currency).
8. Settlement Date.
9. Maturity Date.
10. Redemption or repayment provisions, if any.
11. Net proceeds to the Corporation.
12. Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the
Corporation upon Settlement).
13. If applicable, total amount of original issue
discount
</TABLE>
<PAGE> 62
33
<TABLE>
<S> <C>
("OID"), yield to maturity and initial accrual
period OID.
14. Any other provisions.
B. The Corporation shall provide to the Trustee the above
Settlement information received from the Agent and shall
cause the Trustee to issue, authenticate and deliver the
Notes. The Corporation also shall provide to the Trustee
and/or Agent a copy of the applicable Pricing Supplement.
C. The Trustee will complete the preprinted 4-ply Note
packet containing the following documents in forms
approved by the Corporation, the Presenting Agent and the
Trustee:
1. Note with Agent's customer confirmation.
2. Stub I - for Trustee.
3. Stub 2 - for Agent.
4. Stub 3 - for the Corporation.
D. With respect to each trade, the Trustee will deliver
the Notes and Stub 2 thereof to the Presenting Agent at
the following applicable address: Lehman Government
Securities, Inc., One Battery Park Plaza, New York, N.Y.
10004, Attention: Peter Marchewka; and Goldman, Sachs &
Co., 85 Broad Street, 6th Floor, New York, N.Y. 10004,
Attention: Michael Mosely. The Trustee will keep Stub 1.
The Presenting Agent will acknowledge receipt of the Note
through a broker's receipt and will keep Stub 2. Delivery
of the Note will be made only against such
</TABLE>
<PAGE> 63
34
<TABLE>
<S> <C>
acknowledgment of receipt. Upon determination that the
Note has been authorized, delivered and completed as
aforementioned, the Presenting Agent will wire in
immediately available funds the net proceeds of the Note
after deduction of its applicable commission to the
Corporation pursuant to standard wire instructions given
by the Corporation.
E. The Presenting Agent will deliver the Note (with
confirmations), as well as a copy of the Prospectus and
any applicable Prospectus Supplement or Supplements
received from the Trustee to the purchaser against payment
in immediately available funds.
F. The Trustee will send Stub 3 to the Corporation.
Settlement Pro- For offers accepted by the Corporation, Settlement
cedures Timetable: Procedures "A" through "G" set forth above shall be
completed on or before the respective times set forth
below:
</TABLE>
<TABLE>
<CAPTION>
Settlement
Procedure Time
--------- ----
<S> <C>
A-B 3:00 p.m. on Business
Day prior to settlement
C-D 2:15 p.m. on day of
settlement
E 3:00 p.m. on day of
settlement
F 5:00 p.m. on day of
settlement
</TABLE>
<PAGE> 64
35
<TABLE>
<S> <C>
Failure to Settle: In the event that a purchaser of a Note from the
Corporation shall either fail to accept delivery of or
make payment for a Note on the date fixed for settlement,
the Presenting Agent will forthwith notify the Trustee and
the Corporation by telephone, confirmed in writing, and
return the Note to the Trustee.
The Trustee, upon receipt of the Note from the Agent, will
immediately advise the Corporation and the Corporation
will promptly arrange to credit the account of the
Presenting Agent in an amount of immediately available
funds equal to the amount previously paid by such Agent in
settlement for the Note. Such credits will be made on the
settlement date if possible, and in any event not later
than the Business Day following the settlement date;
provided that the Corporation has received notice on the
same day. If such failure shall have occurred for any
reason other than failure by such Agent to perform its
obligations hereunder or under the Agency Agreement, the
Corporation will reimburse such Agent on an equitable
basis for its loss of the use of funds during the period
when the funds were credited to the account of the
Corporation. Immediately upon receipt of the Note in
respect of which the failure occurred, the Trustee will
cancel and destroy the Note, make appropriate entries in
its records to reflect the fact that the Note was never
issued, and accordingly notify in writing the Corporation.
An Agent will not be entitled to any commission with
respect to any Note which the
</TABLE>
<PAGE> 65
36
<TABLE>
<S> <C>
purchaser does not accept or make payment for.
</TABLE>
<PAGE> 66
EXHIBIT C
PURCHASE AGREEMENT
AIR PRODUCTS AND CHEMICALS, INC.
7201 Hamilton Boulevard
Allentown, Pennsylvania 18195
Attention: [Treasurer]
The undersigned agrees to purchase the following principal amount of
the Notes described in the Agency Agreement dated [ ] (as it may be
supplemented or amended from time to time, the "Agency Agreement") (all
capitalized terms used but not defined herein, shall have the meaning
specified in the Agency Agreement):
<TABLE>
<S> <C>
Principal Amount: [$] ___________________
Currency: ___________________
Interest Rate: ___%
Discount: ___%
Aggregate Price to be ___% of principal amount
paid to Company
(in immediately
available funds): [$] ____________________
Settlement Date: ____________________
Other Terms: ____________________
</TABLE>
[In the case of Notes issued in a foreign currency or currency unit,
unless otherwise specified below, settlement and payments of principal and
interest will be in U.S. dollars based on the highest bid quotation in The
City of New York received by the Exchange Rate Agent at approximately
11:00 a.m. New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent (as defined in the Indenture) for the
purchase by the quoting dealer of the Specified Currency payable to all holders
of Notes denominated in such Specified Currency electing to receive U.S. dollar
payments and at which the applicable dealer commits to execute a contract. If
such bid quotations are not available, payments will be made in the Specified
Currency.)]
Our obligations to purchase Notes hereunder is subject to the
continued accuracy of your representations and warranties contained in
the Agency Agreement and to your performance and observance of all applicable
covenants and agreements contained therein, including, without limitation,
<PAGE> 67
2
your obligations pursuant to Section 7 thereof. Our obligation hereunder is
subject to the further conditions that we shall receive (a) the opinion
required to be delivered pursuant to Sections 5(e) of the Agency Agreement, (b)
the certificate required to be delivered pursuant to Section 5(f) of the Agency
Agreement, in each case dated as of the above Settlement Date and [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 or sell, or enter into any agreement to sell, any debt securities of the
Corporation[, other than borrowings under your revolving credit agreements and
lines of credit, the private placement of securities and issuances of your
commercial paper].
We may terminate this Agreement, immediately upon notice to you, at
any time prior to the Settlement Date, if any of the conditions
specified in Section 5(b) of the Agency Agreement are not satisfied. In the
event of such termination, no party shall have any liability to the other party
hereto, except as provided in Sections 4, 7 and 14 of the Agency Agreement.
This Agreement shall be governed by and construed in accordance with
the laws of New York
LEHMAN BROTHERS INC.
By
--------------------
(Title)
GOLDMAN, SACHS & CO.
-----------------------
Accepted:
AIR PRODUCTS AND CHEMICALS, INC.
By
------------------------
(Title)
<PAGE> 68
EXHIBIT D
FOREIGN CURRENCY AMENDMENT NO. ______________
TO AGENCY AGREEMENT, DATED [ ]
AS AMENDED
[Insert Title of Foreign Currency]
The undersigned hereby agree that for the purposes of the
issue and sale of Notes denominated in [title of currency or currency unit]
(the "Applicable Foreign Currency") pursuant to the Agency Agreement, dated [
], as it may be amended (the "Agency Agreement"), the following additions and
modifications shall be made to the Agency Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under the
Agency Agreement of all Notes denominated in the Applicable Foreign 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 Agency Agreement shall have the same meanings
as in the Agency Agreement. The terms Agent or Agents, as used in the Agency
Agreement, shall be deemed to refer only to the undersigned Agents for purposes
of this Amendment.
[Insert appropriate additions and modifications to the Agency
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
, 19
- -------- --
AIR PRODUCTS AND CHEMICALS, INC.
By
-----------------------
Name:
Title:
<PAGE> 69
2
LEHMAN BROTHERS INC.
By
--------------------
(Title)
GOLDMAN, SACHS & CO.
-----------------------
<PAGE> 1
Exhibit 4(a)
=============================================================================
AIR PRODUCTS AND CHEMICALS, INC.
AND
FIRST FIDELITY BANK, NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated as of January 10, 1995
=============================================================================
<PAGE> 2
TIE-SHEET*
of provisions of Trust Indenture Act of 1939 with Indenture dated as of January
10, 1995, between Air Products and Chemicals, Inc., a Delaware corporation, and
First Fidelity Bank, National Association, Trustee:
<TABLE>
<CAPTION>
SECTION OF THE ACT SECTION OF INDENTURE
<S> <C>
310 (a)(1),(2) and (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
310 (a)(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
310 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8 and 6.10(b)
310 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
311 (a) and (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
311 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1 and 4.2(a)
312 (b) and (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2(b) and (c)
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4
313 (b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
313 (b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4
313 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4
313 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4
314 (a)(1),(2) and (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3
314 (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5
314 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314 (c)(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314 (c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not applicable
314 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5
314 (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5
315 (a), (c) and (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1
315 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.11
315 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
316 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 and 5.9
316 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Omitted
316 (a) last sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
316 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6
317 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2
317 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7
</TABLE>
- ------------------
*This tie-sheet is not part of the Indenture as executed.
<PAGE> 3
<TABLE>
TABLE OF CONTENTS
PAGE
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS
Authorization of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Compliance with Legal Requirements . . . . . . . . . . . . . . . . . . . . . . 1
Purpose of and Consideration for Indenture . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . 1
Attributable Debt . . . . . . . . . . . . . . . . . . . . . 1
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
business day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Order . . . . . . . . . . . . . . . . . . . . . . . 2
Components . . . . . . . . . . . . . . . . . . . . . . . . . 2
Consolidated Current Liabilities . . . . . . . . . . . . . 2
Consolidated Net Tangible Assets . . . . . . . . . . . . . . 2
Conversion Date . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 2
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
European Communities . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . 3
Exchange Rate Agent . . . . . . . . . . . . . . . . . . . . 3
Exchange Rate Officer's Certificate . . . . . . . . . . . . 3
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . 4
Foreign Government Securities . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . 4
holder, holder of Securities, Securityholder . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Issuer or Company . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 4
original issue date . . . . . . . . . . . . . . . . . . . . 4
Original Issue Discount Security . . . . . . . . . . . . . . 4
outstanding . . . . . . . . . . . . . . . . . . . . . . . . 4
Periodic Offering . . . . . . . . . . . . . . . . . . . . . 5
person . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
principal . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
Principal Property . . . . . . . . . . . . . . . . . . . . . 5
Responsible officer . . . . . . . . . . . . . . . . . . . . 5
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . 5
Security or Securities . . . . . . . . . . . . . . . . . . . 6
Specified Currency . . . . . . . . . . . . . . . . . . . . . 6
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Tranche . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . . 6
U.S. Government Obligations . . . . . . . . . . . . . . . . 6
vice president . . . . . . . . . . . . . . . . . . . . . . . 6
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.2 Form of Trustee's Certificate of Authentication . . . . . . 7
SECTION 2.3 Amount Unlimited; Issuable in Series . . . . . . . . . . . . 7
SECTION 2.4 Authentication and Delivery of Securities . . . . . . . . . 9
SECTION 2.5 Execution of Securities . . . . . . . . . . . . . . . . . . 11
SECTION 2.6 Certificate of Authentication . . . . . . . . . . . . . . . 11
SECTION 2.7 Denomination and Date of Securities; Payments of Interest . 11
SECTION 2.8 Registration, Transfer and Exchange . . . . . . . . . . . . 11
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities . 12
SECTION 2.10 Cancelation of Securities; Destruction Thereof . . . . . . . 13
SECTION 2.11 Temporary Securities . . . . . . . . . . . . . . . . . . . . 13
SECTION 2.12 Computation of Interest . . . . . . . . . . . . . . . . . . 13
SECTION 2.13 Payment in Currencies . . . . . . . . . . . . . . . . . . . 14
SECTION 2.14 Securities Issuable in the Form of a Global Security . . . . 16
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . . . . 18
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . . . . 18
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee . . . . . 19
SECTION 3.4 Paying Agents . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.5 Written Statement to Trustee . . . . . . . . . . . . . . . . 19
SECTION 3.6 Limitations on Liens . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.7 Limitation on Sale and Lease-Back . . . . . . . . . . . . . 21
SECTION 3.8 Exemption from Limitation on Liens and Sale and Lease-Back . 21
SECTION 3.9 Securities to be Secured in Certain Events of Merger,
Consolidation, etc. . . . . . . . . . . . . . . . . . . . . 21
</TABLE>
ii
<PAGE> 5
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
<TABLE>
<S> <C>
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.2 Preservation and Disclosure of Securityholders Lists . . . . . . . . 22
SECTION 4.3 Reports by the Issuer . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.4 Reports by the Trustee . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.3 Application of Proceeds . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 5.4 Suits for Enforcement . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings . . . . . . . . 27
SECTION 5.6 Limitations on Suits by Securityholders . . . . . . . . . . . . . . 27
SECTION 5.7 Unconditional Right of Securityholders to Institute
Certain Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.9 Control by Securityholders . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.10 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs . . . . 29
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.2 Certain Rights of the Trustee . . . . . . . . . . . . . . . . . . . 30
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof . . . . . . . . . . . 31
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc . . . . . . 31
SECTION 6.5 Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.6 Compensation and Indemnification of Trustee and Its
Prior Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. . . . . . . 31
SECTION 6.8 Qualification of Trustee; Conflicting Interests . . . . . . . . . . 32
SECTION 6.9 Persons Eligible for Appointment as Trustee . . . . . . . . . . . . 32
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee . . . . . 32
SECTION 6.11 Acceptance of Appointment by Successor Trustee . . . . . . . . . . . 33
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C>
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . . . . . 34
SECTION 6.13 Preferential Collection of Claims Against the Issuer . . . . 34
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders . . . . . . . . 34
SECTION 7.2 Proof of Execution of Instruments and of Holding
of Securities . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.3 Holders to be Treated as Owners . . . . . . . . . . . . . . 35
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding . . . . . 35
SECTION 7.5 Right of Revocation of Action Taken; Action of Holders
Binding on Future Holders . . . . . . . . . . . . . . . . . 35
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders . 36
SECTION 8.2 Supplemental Indentures with Consent of Securityholders . . 37
SECTION 8.3 Effect of Supplemental Indenture . . . . . . . . . . . . . . 37
SECTION 8.4 Documents to Be Given to Trustee . . . . . . . . . . . . . . 37
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures 38
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions . . . . . . . . . . 38
SECTION 9.2 Successor Corporation Substituted . . . . . . . . . . . . . 38
SECTION 9.3 Opinion of Counsel to Trustee . . . . . . . . . . . . . . . 38
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE AND
SECURITIES; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture . . . . . . . . . . 39
SECTION 10.2 Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 10.3 Satisfaction and Discharge of Securities . . . . . . . . . . 40
SECTION 10.4 Application by Trustee of Moneys, U.S. Government
Obligations or Foreign Government Securities Deposited for
Payment of Securities . . . . . . . . . . . . . . . . . . . 40
SECTION 10.5 Repayment or Delivery of Moneys, U.S. Government
Obligations or Foreign Government Securities Held by
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
iv
<PAGE> 7
<TABLE>
<S> <C>
SECTION 10.6 Return of Moneys, U.S. Government Obligations or
Foreign Government Securities Held by Trustee and Paying
Agent Unclaimed for Three Years . . . . . . . . . . . . . . 41
SECTION 10.7 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability . . . . . . . . . . 41
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders . . . . . . . . . . . . . . . . . . . . 41
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture . . . . 42
SECTION 11.4 Notices and Demands on Issuer, Trustee and Securityholders . 42
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein . . . . . . . . . . . . . . . . . . 42
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays . . . . . . 43
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 . . . . . . . . . . . . . . . . . . . 43
SECTION 11.8 New York Law to Govern . . . . . . . . . . . . . . . . . . . 43
SECTION 11.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 11.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . 43
SECTION 11.11 Moneys of Different Currencies to be Segregated . . . . . . 43
SECTION 11.12 Payment to be in Proper Currency . . . . . . . . . . . . . . 43
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . . . 44
SECTION 12.2 Notice of Redemption; Partial Redemptions . . . . . . . . . 44
SECTION 12.3 Payment of Securities Called for Redemption . . . . . . . . 44
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption . . . . . . . . . . . . . . . . . . 45
SECTION 12.5 Mandatory and Optional Sinking Funds . . . . . . . . . . . . 45
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ACKNOWLEDGMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
v
<PAGE> 8
THIS INDENTURE, dated as of January 10, 1995, between AIR PRODUCTS
AND CHEMICALS, INC., a Delaware corporation (the "Issuer"), and FIRST FIDELITY
BANK, NATIONAL ASSOCIATION, a national banking association organized and
existing under the laws of the United States (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from time to time
of its unsecured debentures, notes or other evidences of indebtedness to be
issued in one or more series (the "Securities") up to such principal amount or
amounts as may from time to time be authorized in accordance with the terms of
this Indenture and, to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective holders from time to
time of the Securities or of series thereof as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939 (except as herein otherwise expressly provided or
unless the context otherwise requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings assigned to such terms in accordance
with generally accepted accounting principles, and the term "generally accepted
accounting principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular.
"Attributable Debt" means, as to any particular lease under which any
person is at the time liable, at any date as of which the amount thereof is to
be determined, the total net amount of rent required to be paid by such person
under such lease during the remaining term thereof, excluding renewals,
discounted at the rate of the weighted average Yield to Maturity of the
Securities outstanding hereunder (such average being weighted by the principal
amount of the Securities of each series outstanding or, in the case of Original
Issue Discount Securities, such amount to be determined as provided in the
definition of "outstanding") compounded semi-annually. The net amount of rent
required to be paid under any such lease for any such period shall be the
amount of the rent payable by the lessee with respect to such period, after
excluding amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges and contingent
rents such as those based on sales. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount may, if
the Issuer so elects also include the amount of such penalty, in which case no
rent shall be considered as required to be paid under such lease subsequent to
the first date upon which it may be so terminated.
1
<PAGE> 9
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act hereunder.
"business day" means any day, other than a Saturday or Sunday, that
is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in New York, New York or
(i) with respect to Securities denominated in a Foreign Currency, in the
principal financial center of the country of the Foreign Currency as specified
in the Board Resolution pursuant to Section 2.3, (ii) with respect to
Securities denominated in ECUs, in Brussels, Belgium or (iii) with respect to
Securities which will bear interest based on a specified percentage of London
Interbank offered quotations ("LIBOR"), in London, England.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or
if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on said
date.
"Company Order" means a written request or order signed in the name
of the Issuer by its chairman of the Board of Directors, any vice chairman of
the Board of Directors, its president or any vice president, and by its
treasurer, an assistant treasurer, its corporate secretary or an assistant
corporate secretary, and delivered to the Trustee.
"Components" means, with respect to a composite currency (including
but not limited to the ECU), the currency amounts that are components of such
composite currency on the Conversion Date with respect to such composite
currency. If the official unit of any component currency is altered by way of
combination or subdivision, the amount of such currency in the Component shall
be proportionately divided or multiplied. If two or more component currencies
are consolidated into a single currency, the amounts of those currencies as
Components shall be replaced by an amount in such single currency equal to the
sum of the amounts of such consolidated component currencies expressed in such
single currency, and such amount shall thereafter be a Component. If after such
Conversion Date any component currency shall be divided into two or more
currencies, the amount of such currency as a Component shall be replaced by
amounts of such two or more currencies, each of which shall be equal to the
amount of such former component currency divided by the number of currencies
into which such component currency was divided, and such amounts shall
thereafter be Components.
"Consolidated Current Liabilities" means the aggregate of the current
liabilities of the Company and its consolidated Subsidiaries appearing on a
consolidated balance sheet of the Company and its consolidated Subsidiaries,
all as determined in accordance with generally accepted accounting principles.
"Consolidated Net Tangible Assets" means the total of all assets
appearing on a consolidated balance sheet of the Company and its consolidated
Subsidiaries, prepared in accordance with generally accepted accounting
principles, at their net book values (after deducting related depreciation,
depletion, amortization and all other valuation reserves which, in accordance
with such principles, are set aside in connection with the business
conducted), but excluding goodwill, trademarks, patents, unamortized debt
discount and all other like segregated intangible assets, and amounts on the
asset side of such balance sheet for capital stock of the Company, all as
determined in accordance with such principles, less Consolidated Current
Liabilities.
"Conversion Date," with respect to a composite currency (including
but not limited to the ECU), has the meaning specified in Section 2.13.
"Corporate Trust Office" means the principal office of the Trustee,
in the City of Philadelphia, Commonwealth of Pennsylvania, at which at any
particular time its corporate trust business shall be administered, except that
with respect to presentation of Securities for payment or for registration of
transfer and exchange, and the location of the register, such term shall mean
the office or agency of the Trustee in New York, New York at which, at any
particular time, its corporate agency business shall be conducted.
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"Depositary" means, with respect to the Securities of any series
issuable or issued, in whole or in part, in the form of one or more Global
Securities, the person designated as Depositary by the Issuer pursuant to
Section 2.3(15) until a successor replaces it pursuant to the provisions
hereof, and thereafter means each person who is then a Depositary hereunder,
and if at any time there is more than one such person, "Depositary" as used
with respect to the Securities of any series or part thereof shall mean the
Depositary with respect to the Securities of that series or part thereof.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" means any event or condition specified as such in
Section 5.1 which shall have continued for the period of time, if any, therein
designated.
"Exchange Rate" means (a) with respect to Dollars in which payment is
to be made on a series of Securities denominated in a composite currency unit,
the exchange rate between Dollars and such composite currency unit reported by
the agency or organization, if any, responsible for overseeing such composite
currency unit or by the Council of the European Communities (in the case of
ECU, whose reports are currently based on the rates in effect at 2:30 p.m.,
Brussels time, on the relevant exchange markets), as appropriate, on the
applicable record date with respect to an interest payment date or the
fifteenth day immediately preceding the maturity of an installment of
principal, or on such other date provided herein, as the case may be; (b) with
respect to Dollars in which payment is to be made on a series of Securities
denominated in a Foreign Currency, other than a composite currency unit, the
noon Dollar buying rate for that currency for cable transfers quoted by the
Exchange Rate Agent in The City of New York on the record date with respect to
an interest payment date or the fifteenth day immediately preceding the
maturity of an installment of principal, or on such other date provided
therefore, as the case may be, as certified for customs purposes by the Federal
Reserve Bank of New York and (c) with respect to Foreign Currency in which
payment is to be made on a series of Securities converted into Dollars pursuant
to Section 2.13(d)(i), the noon Dollar selling rate for that currency for cable
transfers quoted by the Exchange Rate Agent in The City of New York on the
record date with respect to an interest payment date or the fifteenth day
immediately preceding the maturity of an instalment of principal or on such
other date provided herein, as the case may be, as certified for customs
purposes by the Federal Reserve Bank of New York. If for any reason such rates
are not available with respect to one or more currencies for which an Exchange
Rate is required, the Company shall use such quotation of the Federal Reserve
Bank of New York as of the most recent available date, or quotations from one
or more commercial banks in The City of New York or in the country of issue of
the currency in question, or such other quotations as the Company, in each
case, shall deem appropriate. If there is more than one market for dealing in
any currency by reason of foreign exchange regulations or otherwise, the market
to be used in respect of such currency shall be the largest market upon which a
nonresident issuer of securities designated in such currency would purchase
such currency in order to make payments in respect of such securities.
"Exchange Rate Agent" means the New York clearing house bank
designated by the issuer to act as such for any series of Securities, or any
successor thereto.
"Exchange Rate Officer's Certificate" means, with respect to any date
for the payment of principal of (and premium, if any) and interest on any
series of Securities, a certificate setting forth the applicable Exchange Rate
as of the record date with respect to an interest payment date or the fifteenth
day immediately preceding the maturity of an installment of principal or such
other date as provided herein, as the case may be, and the amounts payable in
Dollars in respect of the principal of (and premium, if any) and interest on
Securities denominated in ECU, any other composite currency or Foreign
Currency, and signed by the chairman of the Board of Directors or any vice
chairman of the Board of Directors or the president or any vice president or
the treasurer or any assistant treasurer or secretary or assistant secretary
of the Issuer and delivered to the Trustee.
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"Foreign Currency" means a currency issued by the government of any
country other than the United States of America or a composite currency based
on the aggregate value of currencies of any group of countries.
"Foreign Government Securities" means, with respect to Securities of
any series that are denominated in a Foreign Currency, Securities that are (i)
direct obligations of the government that issued or caused to be issued such
currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of such government the timely payment of such
is unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under clauses (i) or (ii), are not callable
or redeemable at the option of the issuer thereof.
"Global Security" means a Security issued to evidence all or a part
of any series of Securities, registered in the name of, and issued to, the
Depositary for such series or part thereof or such Depositary's nominee and
representing the amount of uncertificated Securities of such series specified
thereon.
"holder," "holder of Securities," "Securityholder" or other similar
terms means the registered holder of any Security.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented, or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder and the provisions
of the Trust Indenture Act of 1939 that are deemed to be part of and to govern
this instrument and any supplement thereto.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" or "Company" means (except as otherwise provided in Article
Six) AIR PRODUCTS AND CHEMICALS, INC., a Delaware corporation, and, subject to
Article Eleven, its successors and assigns.
"Officers' Certificate" means a certificate signed by the chairman of
the Board of Directors or any vice chairman of the Board of Directors or the
president or any vice president and by the treasurer or any assistant treasurer
or the secretary or any assistant secretary of the Issuer and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 11.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer or who may be other
counsel. Each such opinion shall include the statements provided for in Section
11.5, if and to the extent required hereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"outstanding" (except as otherwise provided in Section 6.8), when
used with reference to Securities, shall, subject to the provisions of Section
7.4, mean, as of any particular time, all Securities authenticated and
delivered by the Trustee under this Indenture, except
(a) Securities theretofor canceled by the Trustee or
delivered to the Trustee for cancellation;
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(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Issuer) or shall have been set aside, segregated and held in
trust by the Issuer for the holders of such securities (if the Issuer
shall act as its own paying agent), provided that if such Securities
are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.9 (except with respect to any
such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal
amount of outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, (i) the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
and (ii) the principal amount of a Security denominated in a Foreign Currency
or currency unit shall be the Dollar equivalent (as determined by the Company
in good faith) as of the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent (as determined by the Company in good faith) of the amount
determined as provided in (i) above) of such Security.
"Periodic Offering" means an offering of Securities of a series
from time to time, the specific terms of which Securities, including without
limitation the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"principal," whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"Principal Property" means any manufacturing plant, research
facility or warehouse owned or leased by the Issuer or any Subsidiary which is
located within the United States of America and has a net book value exceeding
the greater of $5,000,000 and 1% of the shareholders' equity of the Issuer and
its consolidated Subsidiaries, as shown on the audited consolidated statement
of financial condition contained in the latest annual report to shareholders of
the Issuer; provided, however, that the term "Principal Property" shall not
include any such plant, facility or warehouse or portion thereof which the
Board of Directors by resolution declares is not of material importance to the
total business conducted by the Company and its Subsidiaries as an entirety.
"responsible officer" means, when used with respect to the Trustee,
any officer, any trust officer, or any assistant trust officer of the Trustee
located at the Corporate Trust Office customarily performing functions similar
to those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary (a) substantially all of
the property of which is located, or substantially all of the business of which
is carried on, within the United States of America and (b) which owns or leases
a Principal Property.
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"Security" or "Securities" (except as otherwise provided in Section
6.8) has the meaning stated in the first recital of this Indenture, or, as the
case may be, Securities that have been authenticated and delivered under this
Indenture.
"Specified Currency" means the currency in which the Securities of
any series are payable, in accordance with their terms or pursuant to an
election made by one or more Securityholders pursuant to Section 2.3 or Section
2.13.
"Subsidiary" means any corporation of which at least a majority of
all outstanding stock (having by the terms thereof ordinary voting power in the
election of directors of such corporation, irrespective of whether or not at
the time stock of any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is, at the
time, owned by the Company or by one or more Subsidiaries of the Company.
"Tranche" means a group of Securities which (a) are of the same
series and (b) have identical terms except as to principal amount and date of
issuance.
"Trustee" means the person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee.
"Trust Indenture Act of 1939" means the Trust Indenture Act of 1939,
as amended and in force at the date as of which this Indenture was originally
executed; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act of 1939" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939, as so amended.
"U.S. Government Obligations" means non-callable securities which are
either (i) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged, (ii) obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, the timely payment of which are unconditionally
guaranteed by the full faith and credit of the United States of America, (iii)
depositary receipts issued by a bank or trust company (having a combined
capital and surplus in excess of $25,000,000) as custodian with respect to any
U.S. Government Obligations or any specific payment of interest or principal
due on any U.S. Government Obligations held by such custodian for the account
of the holder of the depositary receipts provided that, except as required by
law, no deduction may be made by the custodian from the amount payable to the
holder of such depositary receipts from the amount received by the custodian in
respect of the U.S. Government Obligations or the specific payments of interest
or principal due thereon evidenced by such depositary receipts, or (iv) any
combination of the foregoing U.S. Government Obligations (including any
securities described in clause (i) or (ii) issued or held in book-entry form on
the books of the Federal Reserve Bank of New York).
"vice president" when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president."
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
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<PAGE> 14
ARTICLE TWO
SECURITIES
SECTION 2.1 FORMS GENERALLY. The Securities of each series shall
be in the form (not inconsistent with this Indenture) as shall be established by
or pursuant to a resolution of the Board of Directors or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such
legend or legends, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
First Fidelity Bank,
National Association,
as Trustee
By
----------------------------
Authorized Officer
SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 2.8, 2.9, 2.11 or 12.3);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates or the method by which such rate or
rates are determined at which the Securities of the series, or any
Tranche thereof, shall bear interest, if any, the date or dates from
which such interest shall accrue, the interest payment dates on which
such interest shall be payable and the record dates for the
determination of holders to whom interest is payable;
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<PAGE> 15
(5) the place or places where the principal and any interest
on Securities of the series, or any Tranche thereof, shall be payable;
(6) the price or prices at which, the period or periods
within which and the terms and conditions upon which Securities of the
series, or any Tranche thereof, may be redeemed, in whole or in part,
at the option of the Issuer, pursuant to any sinking fund, defeasance
or otherwise;
(7) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series, or any Tranche thereof,
pursuant to any sinking fund or analogous provisions or at the option
of a holder thereof and the price or prices at which and the period or
periods within which and the terms and conditions upon which
Securities of the series, or any Tranche thereof, shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any multiple
thereof for Securities denominated in Dollars, the denominations in
which Securities of the series, or any Tranche thereof, shall be
issuable;
(9) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series, or any Tranche
thereof, which shall be payable upon declaration of acceleration of
the maturity thereof pursuant to Section 5.1 or provable in bankruptcy
pursuant to Section 5.2;
(10) any Events of Default with respect to the Securities of
the series, if not set forth herein;
(11) the forms of the Securities of the series;
(12) if other than Dollars, the coin or currency or
currencies, or currency unit or units, in which payment of the
principal of (and premium, if any) and interest, if any, on any of the
Securities of the series, or any Tranche thereof, shall be payable and
the Exchange Rate Agent, if any, for such series;
(13) if the principal of (and premium, if any) or interest, if
any, on any of the Securities of the series, or any Tranche thereof,
are to be payable at the election of the Issuer or a holder thereof,
or under some or all other circumstances, in a coin or currency or
currencies, or currency unit or units, other than that in which the
Securities are denominated, the period or periods within which, and
the terms and conditions upon which, such election may be made, or the
other circumstances under which any of the Securities are to be so
payable, and any provision requiring the holder to bear currency
exchange costs by deduction from such payments;
(14) if the amount of payments of principal (and premium, if
any) or interest, if any, on any of the Securities of the series, or
any Tranche thereof, may be determined with reference to an index
based on (i) a coin or currency or currencies, or currency unit or
units, other than that in which such Securities are stated to be
payable, or a commodity or commodities or (ii) any method not
inconsistent with the provisions of this Indenture specified in or
pursuant to such resolution of the Board of Directors, then in each
case (i) and (ii), the manner in which such amounts shall be
determined;
(15) whether the Securities shall be issued, in whole or in
part, in the form of one or more Global Securities and, in such case,
(a) the Depositary therefor and (b) the terms and conditions, if any,
upon which any such Global Security may be exchanged in whole or in
part for definitive Securities represented thereby, other than as set
forth in Section 2.14 hereof;
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<PAGE> 16
(16) any other terms of the Securities of the series, or any
Tranche thereof (which terms shall not be inconsistent with the
provisions of this Indenture); and
(17) any trustees, authenticating or paying agents, warrant
agents, transfer agents or registrars with respect to the Securities
of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board of Directors or in any such indenture
supplemental hereto. With respect to Securities of a series subject to a
Periodic Offering, general terms or parameters for Securities of such series
may be stated, providing either that the specific terms of particular
Securities of such series shall be specified in a Company Order or that such
terms shall be determined by the Issuer or its agents in accordance with a
Company Order as contemplated by the last paragraph of Section 2.4.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES. At any
time and from time to time after the execution and delivery of this Indenture,
the Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Securities to or upon a Company Order without any further action
by the Issuer; provided that, with respect to Securities of a series subject to
a Periodic Offering (a) such Company Order may be delivered by the Issuer to
the Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the maturity date or dates, original issue date or dates, interest
rate or rates and any other terms of Securities of such series shall be
determined by Company Order or pursuant to such procedures and (d) if provided
for in such procedures, such Company Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Issuer or its
duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon:
(1) certified copies of the Articles of Incorporation and
By-Laws of the Company (or an Officers' Certificate with respect to
any amendments thereto) and of any resolution or resolutions of the
Board of Directors authorizing the action taken pursuant to the
resolution or resolutions delivered under clause (2) below;
(2) a copy of any resolution or resolutions of the Board of
Directors relating to such series, in each case certified by the
Secretary or an Assistant Secretary of the Issuer;
(3) an executed supplemental indenture, if any;
(4) an Officers' Certificate setting forth (i) the form and
terms of the Securities as required pursuant to Sections 2.1 and 2.3,
respectively and (ii) the Yield to Maturity of the Securities;
(5) an Opinion of Counsel prepared in accordance with
Section 11.5 which shall also state
(a) that the form or forms and terms of such
Securities have been established by or pursuant to a
resolution of the Board of Directors or by a supplemental
indenture as permitted by Sections 2.1 and 2.3 in conformity
with the provisions of this Indenture;
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<PAGE> 17
(b) that such Securities, when authenticated and
delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Issuer;
(c) that all laws, requirements and consents in
respect of the execution and delivery by the Issuer of such
Securities have been complied with; and
(d) such other matters as the Trustee may reasonably
request;
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time of
the first authentication of Securities of such series and that the
opinions described in clauses (a) and (b) above may state,
respectively,
(x) that, when the terms of such Securities shall
have been established pursuant to a Company Order or pursuant
to such procedures as may be specified from time to time by a
Company Order, all as contemplated by and in accordance with
an Officers' Certificate authorized by or pursuant to a
Resolution of the Board of Directors, such terms will have
been duly authorized by the Company and will have been
established in conformity with the provisions of this
Indenture; and
(y) that such Securities when (1) executed by the
Company, (2) completed, authenticated and delivered by the
Trustee in accordance with this Indenture, (3) issued and
delivered by the Issuer and (4) paid for, all as contemplated
by and in accordance with the aforesaid Company Order or
specified procedures, as the case may be, will have been duly
issued under this Indenture and will constitute valid and
legally binding obligations of the Issuer, entitled to the
benefits provided by the Indenture, and enforceable in
accordance with their terms, subject, as to enforcement, to
laws and principles of equity relating to or affecting
generally the enforcement of creditors' rights, including
without limitation bankruptcy and insolvency laws.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by the
Issuer of any of such Securities, the form and terms thereof and the legality,
validity, binding effect and enforceability thereof, upon the Opinion of
Counsel and other documents delivered pursuant to Sections 2.1 and 2.3 and this
Section, as applicable, at or prior to the time of the first authentication of
Securities of such series unless and until such opinion or other documents have
been superseded or revoked. In connection with the authentication and delivery
of Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Issuer's instructions to authenticate and deliver
such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Issuer.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees and/or vice presidents
shall determine that such action would expose the Trustee to personal liability
to existing holders.
Notwithstanding the provisions of Section 2.3 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 2.3 or clause (4) of the
first paragraph of this Section or the Company Order and Opinion of Counsel
otherwise required pursuant to this Section at or prior to the time of
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued. If the resolution of the Board of Directors or
supplemental indenture establishing such Securities shall so permit, such
Company Order may set forth procedures acceptable to the
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<PAGE> 18
Trustee for the issuance of such Securities, including procedures to determine
the interest rate or rates, stated maturity or maturities, date or dates of
issuance and other terms of such Securities, and such Company Order or
procedures may authorize authentication and delivery of Securities pursuant to
oral instructions from the Issuer or its authorized agent, which instructions
shall be promptly confirmed in writing.
SECTION 2.5 EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of the Issuer by both (a) its chairman of the Board of
Directors or any vice chairman of the Board of Directors or its president or
any vice president and (b) by its treasurer or any assistant treasurer or its
secretary or any assistant secretary, under its corporate seal which may, but
need not, be attested. Such signatures may be the manual or facsimile signatures
of the present or any future such officers. The seal of the Issuer may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by manual signature of one of its
authorized officers, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the holder is entitled to the benefits of this Indenture.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as registered
securities without coupons and in such denominations as shall be specified as
contemplated by Section 2.3. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any multiple thereof. The Securities of
each series shall be numbered, lettered, or otherwise distinguished in such
manner or in accordance with such plans as the officers of the Issuer executing
the same may determine with the approval of the Trustee as evidenced by the
execution and authentication thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the applicable date
and shall be payable on such dates, in each case, as shall be specified on the
face of the form of security.
The person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the
extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the persons in whose names outstanding Securities of such
series are registered at the close of business on a subsequent record date
(which shall be not less than five business days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf
of the Issuer to the holders of Securities not less than 15 days preceding such
subsequent record date.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer will
keep at each office or agency to be maintained for the purpose as provided in
Section 3.2 a register or registers for each series of
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Securities issued hereunder in which, subject to such reasonable regulations as
it may prescribe, it will register, and will register the transfer of,
Securities of such series as in this Article provided. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series in authorized denominations for a
like aggregate principal amount and tenor, having the same terms and
conditions.
Any Security or Securities of any series may be exchanged for a
Security or Securities of the same series in other authorized denominations, in
an equal aggregate principal amount and of like tenor, having the same terms
and conditions. Securities of any series to be exchanged shall be surrendered
at any office or agency to be maintained by the Issuer for the purpose as
provided in Section 3.2, and the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Security or Securities of the
same series which the Securityholder making the exchange shall be entitled to
receive and of like tenor, having the same terms and conditions, bearing
numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed, or (b) any Securities selected, called or being called for redemption
except, in the case of any Security where public notice has been given that
such Security is to be redeemed in part, the portion thereof not so to be
redeemed after the redemption date.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security of any series shall
become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver, a new Security of the same
series and of like tenor, having the same terms and conditions, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
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Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. In case any Security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Issuer may instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a
mutilated or defaced Security), if the applicant for such payment shall furnish
to the Issuer and to the Trustee and any agent of the Issuer or the Trustee
such security or indemnity as any of them may require to save each of them
harmless, and, in every case of destruction, loss or theft, the applicant shall
also furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities of such
series duly authenticated and delivered hereunder. All Securities shall be held
and owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.10 CANCELATION OF SECURITIES; DESTRUCTION THEREOF. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, if surrendered to the Issuer or any agent of the Issuer or the
Trustee, shall be delivered to the Trustee for cancelation or, if surrendered
to the Trustee, shall be canceled by it; and no Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy canceled Securities held by it and deliver
a certificate of destruction to the Issuer. If the Issuer shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities of such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee. Temporary Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such series,
unless the Securities of a series are to be issued as Global Securities
pursuant to Section 2.14, and thereupon temporary Securities of such series
may be surrendered in exchange therefor without charge at each office or agency
to be maintained by the Issuer for that purpose pursuant to Section 3.2, and
the Trustee shall authenticate and deliver in exchange for such temporary
Securities of such series a like aggregate principal amount of definitive
Securities of the same series of authorized denominations. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 2.12 COMPUTATION OF INTEREST. Except as otherwise
contemplated by Section 2.3 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
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SECTION 2.13. PAYMENT IN CURRENCIES.
(a) Payment of the principal of (and premium, if any)
and interest on the Securities of any series shall be made in
the currency or currencies or units specified pursuant to
Section 2.3(12); provided that in the case of Securities of a
series denominated in Foreign Currencies the holder of a
Security of such series may elect to receive such payment in
Dollars if authorized pursuant to Section 2.3(13).
A holder may make such election by delivering to the
Trustee a written notice thereof, substantially in the form
set forth in Section 2.13(f), or in such other form as may be
acceptable to the Trustee, not later than the close of
business on the record date immediately preceding the
applicable payment date. Such election shall remain in effect
with respect to such holder until such holder delivers to the
Trustee a written notice rescinding such election, provided
that any such notice must be delivered to the Trustee not
later than the close of business on the record date
immediately preceding the next interest payment date or the
fifteenth day preceding the maturity of an installment of
principal, as the case may be, in order to be effective for
the payment to be made thereon; and provided further that no
such rescission may be made with respect to payments to be
made on any Security with respect to which notice of
redemption has been given by the Issuer pursuant to Article Twelve.
Upon request, the Trustee will mail a copy of the form of notice as
set forth in Section 2.13(f) to any holder requesting a copy thereof
to the address of such holder set forth in such request.
(b) If at least one holder has made the election referred to
in subsection (a) above to receive payments in Dollars on a series of
Securities denominated in one or more Foreign Currencies, then the
Trustee shall deliver to the Issuer, not later than the fourth
business day after the record date with respect to an interest payment
date or the 10th day immediately preceding the maturity of an
installment of principal, as the case may be, a written notice
specifying the amount of principal of (and premium, if any) and
interest on such series of Securities to be paid in Dollars on such
payment date.
(c) Except as otherwise specified as contemplated by Section
2.3 of the Indenture, if at least one holder has made the election
referred to in subsection (a) above to receive payments in Dollars on
a series of Securities denominated in one or more Foreign Currencies,
then the amount receivable by holders of a series of Securities who
have elected payment in Dollars shall be determined by the Issuer on
the basis of the applicable Exchange Rate set forth in the applicable
Exchange Rate Officer's Certificate. The Issuer shall deliver, not
later than the eighth day following each record date or the sixth day
immediately preceding the maturity of an installment of principal, as
the case may be, to the Trustee an Exchange Rate Officer's Certificate
in respect of the payments to be made to such holders on such payment
date.
(d)(i) If the Foreign Currency in which a series of Securities is
denominated is not available to the Issuer for making payment thereof
due to the imposition of exchange controls or other circumstances
beyond the control of the Issuer, then with respect to each date for
the payment of principal of (and premium, if any) and interest on such
series of Securities occurring after the final date on which the
Foreign Currency was so used, all payments with respect to the
Securities of any such series shall be made in Dollars. If payment is
to be made in Dollars to the holders of any such series of Securities
pursuant to the provisions of the preceding sentence, then the amount
to be paid in Dollars on a payment date by the Issuer to the Trustee
and by the Trustee or any paying agent to holders shall be determined
by an Exchange Rate Agent and shall be
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equal to the sum obtained by converting the specified Foreign
Currency into Dollars at the Exchange Rate on the second business day
preceding such interest payment date or the second business day
preceding the maturity of an installment of principal, as the case
may be, or if no rate is quoted for such Foreign Currency, the last
date such rate is quoted.
(ii) If the ECU ceased to be used both within the European
Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or is not available
due to circumstances beyond the control of the Issuer, or if any other
composite currency in which a Security is denominated or payable ceases
to be used for the purposes for which it was established or is not
available due to circumstances beyond the control of the Issuer, then
with respect to each date for the payment of principal of (and premium,
if any) and interest on a series of Securities denominated in ECU or
such other composite currency, as appropriate (the "Conversion Date"),
occurring after the last date on which the ECU or such other composite
currency was so used, all payments with respect to the Securities of
any such series shall be made in Dollars.
If payment with respect to Securities of a series denominated in
ECU or any other composite currency is to be made in Dollars pursuant
to the provisions of the preceding paragraph, then the amount to be
paid in Dollars on a payment date by the Issuer to the Trustee and by
the Trustee or any paying agent to holders shall be determined by an
Exchange Rate Agent and shall be equal to the sum of the amounts
obtained by converting each Component of such composite currency into
Dollars at its respective Exchange Rate on the second business day
preceding such interest payment date or on the second business day
preceding the maturity of an installment of principal, as the case may
be, multiplied by the number of ECU or units of such other composite
currency, as appropriate, that would have been so paid had the ECU or
such other composite currency, as appropriate, not ceased to be so
used.
(e) All decisions and determinations of an Exchange Rate Agent
regarding the Exchange Rate or conversion of Foreign Currency into
Dollars pursuant to subsection (d)(i) above or the conversion of ECU or
any other composite currency into Dollars pursuant to subsection
(d)(ii) shall, in the absence of manifest error, be conclusive for all
purposes and irrevocably binding upon the Issuer, the Trustee, any
paying agent and all holders of the Securities. If a Foreign Currency
in which payment of a series of Securities may be made, pursuant to
subsection (a) above, is not available to the Issuer for making
payments thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer, the Issuer, after
learning thereof, will give notice thereof to the Trustee immediately
(and the Trustee promptly thereafter will give notice to the holders in
the manner provided in Section 11.4) specifying the last date on which
the Foreign Currency was used for the payment of principal of (and
premium, if any) or interest on such series of Securities. In the
event the ECU ceases to be used both within the European Monetary
System and for the settlement of transactions by public institutions of
or within the European Communities or is not available due to
circumstances beyond the control of the Issuer, or any other composite
currency in which a Security is denominated or payable ceases to be
used for the purposes for which it was established or is not available
due to circumstances beyond the control of the Issuer, the Issuer,
after learning thereof, will give notice thereof to the Trustee
immediately (and the Trustee promptly thereafter will give notice to
the holders in the manner provided in Section 11.4). In the event of
any subsequent change in any Component, the Company, after learning
thereof, will give notice to the Trustee similarly (and the Trustee
promptly thereafter will give notice to the holders in the
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manner provided in Section 11.4). The Trustee shall be fully
justified and protected in relying and acting upon the information
so received by it from the Issuer and shall not otherwise have any
duty or obligation to determine such information independently.
(f) Form of election to receive payments in Dollars or to
rescind such election:
The undersigned, registered owner of certificate number (the
"Certificate"), representing [name of series of Securities] (the
"Securities") in an aggregate principal amount of , hereby
(a) elects to receive all payments in respect of the
Securities in Dollars. Subject to the terms and conditions set
forth in the Indenture under which the Securities were issued,
this election shall take effect on the next record date after
this election form is received by the Trustee and shall remain in
effect until it is rescinded by the undersigned or until the
Certificate is transferred or paid in full at maturity.
[or]
(b) rescinds the election previously submitted by the
undersigned to receive all payments in respect of the Securities
in Dollars represented by the Certificate. Subject to the terms
and conditions set forth in the Indenture, this rescission shall
take effect on the next record date after this election form is
received by the Trustee.
The undersigned acknowledges that, except as provided in
the Indenture, any costs incurred by or on behalf of the Company
in connection with the conversion of foreign currency into
Dollars shall be borne by the undersigned through deduction from
payments required to be made to the undersigned pursuant to the
terms of the Indenture.
All capitalized terms used herein, unless otherwise
defined herein, shall have the meanings assigned to them in the
Indenture.
-------------------------
(Name of Owner)
-------------------------
(Signature of Owner)
SECTION 2.14 SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY.
(a) If the Issuer shall establish pursuant to Sections 2.1
and 2.3 that the Securities of a particular series are to be issued
in whole or in part in the form of one or more Global Securities, then
the Issuer shall execute and the Trustee shall authenticate and
deliver, such Global Security or Securities, which (i) shall
represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the outstanding
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Securities of such series to be represented by such Global Security or
Securities, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction and (iv) shall bear a legend substantially
to the following effect:
"Unless and until it is exchanged in whole or in part for
the individual Securities represented hereby, this Global
Security may not be transferred except 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 or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor
Depositary."
(b) Notwithstanding any other provision of this
Section 2.14 or of Section 2.8, subject to the provisions
of paragraph (c) below, unless the terms of a Global
Security expressly permit such Global Security to be
exchanged in whole or in part for individual Securities, a
Global Security may be transferred, in whole but not in
part and in the manner provided in Section 2.8, only to a
nominee of the Depositary for such Global Security, or to
the Depositary, or to a successor Depositary for such
Global Security selected or approved by the Issuer, or to
a nominee of such successor Depositary.
(c)(i) If at any time the Depositary for a Global
Security notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Global Security
or if at any time the Depositary for the Securities of
such series or part thereof shall no longer be eligible or
in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or
regulation, the Issuer shall appoint a successor
Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not
appointed by the Issuer within 90 days after the Issuer
receives such notice or becomes aware of such
ineligibility, the Issuer will execute, and the Trustee,
upon receipt of a Company Order for the authentication and
delivery of individual Securities of such series in
exchange for such Global Security, will authenticate and
deliver individual Securities of such series of like tenor
and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global
Security in exchange for such Global Security.
(ii) The Issuer may at any time and in its sole
discretion determine that the Securities of any series
issued or issuable in the form of one or more Global
Securities shall no longer be represented by such Global
Security or Securities. In such event the Issuer will
execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of individual
Securities of such series in exchange in whole or in part
for such Global Security will authenticate and deliver
individual Securities of such series of like tenor and
terms in definitive form in an aggregate principal amount
equal to the principal amount of such Global Security or
Securities representing such series in exchange for such
Global Security or Securities.
(iii) If specified by the Issuer pursuant to
Sections 2.1 and 2.3 with respect to Securities issued or
issuable in the form of a Global Security, the Depositary
for such Global Security may surrender such Global Security
in exchange in whole or in part for individual Securities
of such series of like tenor and terms in definitive form
on such terms as are acceptable to the Issuer and such
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Depositary. Thereupon the Issuer shall execute, and the
Trustee shall authenticate and deliver, without service
charge, (1) to each person specified by such Depositary a
new Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested
by such person in aggregate principal amount equal to and
in exchange for such person's beneficial interest in the
Global Security; and (2) to such Depositary a new Global
Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to
beneficial holders thereof.
(iv) In any exchange provided for in any of the
preceding three subparagraphs of this paragraph (c), the
Issuer will execute and the Trustee will authenticate and
deliver individual Securities in definitive registered form
in authorized denominations. Upon the exchange of a Global
Security for individual Securities, such Global Security
shall be canceled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section
shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities at its Corporate
Trust Office to the persons in whose names such Securities
are so registered.
(d) No holder of any beneficial interest in any Global
Security held on its behalf by a Depositary shall have any rights
under this Indenture with respect to such Global Security, and
such Depositary may be treated by the Issuer, the Trustee and any
agent of the Issuer or the Trustee as the owner or holder of such
Global Security for all purposes whatsoever. Neither the Issuer
nor the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests in any Global Security or any other
Security issued in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership
interests.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
covenants and agrees for the benefit of the respective holders from time to time
of each series of Securities that it will duly and punctually pay or cause to be
paid the principal of, and interest on, each of the Securities of such series at
the place or places, at the respective times and in the manner provided in such
Securities. Each installment of interest on the Securities of any series may be
paid by mailing checks for such interest payable to or upon the written order
of the holders of Securities entitled thereto as they shall appear on the
registry books of the Issuer.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any of the
Securities of any series remain outstanding, the Issuer will maintain in the
Borough of Manhattan, The City of New York, the following for such series: (a)
an office or agency where the Securities may be presented for payment, (b) an
office or agency where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided and (c) an office or
agency where notices and demands to or upon the Issuer in respect of the
Securities or of this Indenture may be served. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. The Issuer hereby initially designates the office or
agency as shall be specified as contemplated by Section 2.3 for each such
purpose. In case the Issuer shall fail to maintain any such office or agency or
shall fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at the
Corporate Trust Office.
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SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE.
The Issuer, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
SECTION 3.4 PAYING AGENTS. Whenever the Issuer shall appoint a
paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such
agent for the payment of the principal of or interest on the
Securities of such series (whether such sums have been paid to it
by the Issuer or by any other obligor on the Securities of such
series) in trust for the benefit of the holders of the Securities
of such series or of the Trustee, and
(b) that it will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the Securities
of such series) to make any payment of the principal of or
interest on the Securities of such series when the same shall be
due and payable.
The Issuer will, on or prior to each due date of the principal of
or interest on the Securities of such series, deposit with the paying agent a
sum sufficient to pay such principal or interest so becoming due, and (unless
such paying agent is the Trustee) the Issuer will promptly notify the Trustee
of any failure to take such action.
If the Issuer shall act as its own paying agent, it will, on or
before each due date of the principal of or interest on the Securities of any
series, set aside, segregate and hold in trust for the benefit of the holders
of the Securities of such Series a sum sufficient to pay such principal or
interest so becoming due. The Issuer will promptly notify the Trustee of any
failure to take such action.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.5 WRITTEN STATEMENT TO TRUSTEE. The Issuer will
deliver to the Trustee on or before May 15 in each year (beginning with 1995) a
written statement (which need not comply with Section 11.5) as to whether or
not to the best knowledge of the signers thereof the Isuuer is in default in
the performance and observance of the terms, provisions, covenants and
conditions of this Indenture (without regard to any period of grace or
requirements of notice provided hereunder) and if the Issuer shall be in
default, specifying all such defaults and the nature and status thereof of
which the signers may have knowledge. At least one signatory to such statement
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Issuer.
SECTION 3.6 LIMITATIONS ON LIENS. Except to the extent provided
in Section 3.8, the Company will not create or assume, and will not permit any
Restricted Subsidiary to create or assume, any mortgage, security interest,
pledge or lien (collectively in this Article Three referred to as "lien") of or
upon any Principal Property or shares of capital stock or indebtedness of any
Restricted Subsidiary, whether owned at the date of this Indenture or
thereafter acquired, without making effective provision, and the Company in
such case will make or cause to be made effective provision, whereby the
outstanding Securities shall be secured by such lien equally and ratably with
any and all other indebtedness or obligations thereby secured, so long as such
other indebtedness or obligations shall be so secured; provided that the
foregoing shall not apply to any of the following:
(1) liens on any Principal Property (including any underlying
real estate) acquired, constructed or improved by the Company or any
Restricted Subsidiary after the date of this
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Indenture which are created or assumed contemporaneously with, or
within 120 days after (or in the case of any such Principal Property
which is being financed on the basis of long-term contracts or similar
financing arrangements for which a firm commitment is made by one or
more banks, insurance companies or other lenders or investors (not
including the Company or any Restricted Subsidiary), then within 360
days after), the completion of such acquisition, construction or
improvement to secure or provide for the payment of any part of the
purchase price of such property or the cost of such construction or
improvement, or liens on any Principal Property at the time of
acquisition thereof;
(2) liens on property or shares of capital stock or
indebtedness of a corporation existing at the time such corporation is
merged into or consolidated with the Issuer or a Restricted Subsidiary
or at the time of a sale, lease or other disposition of the properties
of a corporation as an entirety or substantially as an entirety to the
Issuer or a Restricted Subsidiary;
(3) liens on property or shares of capital stock or
indebtedness of a corporation existing at the time such corporation
becomes a Restricted Subsidiary;
(4) liens to secure indebtedness of a Restricted Subsidiary
to the Company or to another Restricted Subsidiary, but only so long
as such indebtedness is held by the Company or a Restricted
Subsidiary;
(5) liens in favor of the United States of America or any
State thereof, or any department, agency or political subdivision of
the United States of America or any State thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or statute, including, without limitation, liens to secure
indebtedness of the pollution control or industrial revenue bond type,
or to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of constructing or
improving the property subject to such liens;
(6) liens in favor of any customer arising in respect of
partial, progress, advance or other payments made by or on behalf of
such customer for goods produced for or services rendered to such
customer in the ordinary course of business not exceeding the amount
of such payments;
(7) liens for the sole purpose of extending, renewing or
replacing in whole or in part any lien referred to in the foregoing
clauses (1) to (6), inclusive, or in this clause (7), or any lien
created prior to and existing on the date of this Indenture, provided
that the principal amount of indebtedness secured thereby shall not
exceed the principal amount of indebtedness so secured at the time of
such extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the
property subject to the lien so extended, renewed or replaced (plus
improvements on such property);
(8) mechanics', workmen's, repairmen's, materialmen's,
carriers' or other similar liens arising in the ordinary course of
business;
(9) liens created by or resulting from any litigation or
proceedings which are being contested in good faith; liens arising out
of judgments or awards against the Company or any Restricted
Subsidiary with respect to which the Company or such Restricted
Subsidiary is in good faith prosecuting an appeal or proceedings for
review; or liens incurred by the Company or any Restricted Subsidiary
for the purpose of obtaining a stay or discharge in the course of any
legal proceeding to which the Company or such Restricted Subsidiary is
a party; or
(10) liens for taxes or assessments or governmental charges
or levies not yet due or delinquent, or which can thereafter be paid
without penalty, or which are being contested in good faith by
appropriate proceedings; landlord's liens on property held under
lease, and tenants' rights under leases; easements; and any other
liens of a nature similar to those hereinabove described in
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this clause (10) which do not, in the opinion of the Company,
materially impair the use of such property in the operation of the
business of the Company or a Restricted Subsidiary or the value of such
property for the purposes of such business.
SECTION 3.7 LIMITATION ON SALE AND LEASE-BACK. Except to the
extent provided in Section 3.8, the Company will not, nor will it permit any
Restricted Subsidiary to, enter into any arrangement with any person providing
for the leasing by the Company or any Restricted Subsidiary of any Principal
Property (except for temporary leases for a term, including any renewal
thereof, of not more than three years and except for leases between the Company
and a Restricted Subsidiary or between Restricted Subsidiaries), which property
has been owned and operated by the Issuer or any Restricted Subsidiary for more
than 120 days and has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such person (in this Article Three referred to as
a "Sale and Lease-Back Transaction") unless either (a) the Issuer or such
Restricted Subsidiary would be entitled to incur indebtedness secured by a lien
on such property without equally and ratably securing the Securities pursuant
to the provisions of Section 3.6, or (b) the Company shall apply an amount
equal to the Attributable Debt of such Sale and Lease-Back Transaction to (i)
the acquisition of another Principal Property of equal or greater fair market
value, or (ii) the retirement of indebtedness for borrowed money (excluding
indebtedness under a revolving loan facility, unless the commitment is reduced
by the amount of such payment), including the Securities, incurred or assumed
by the Company or any Restricted Subsidiary (other than indebtedness for
borrowed money (excluding indebtedness under a revolving loan facilit, unless
the commitment is reduced by the receipt of such payment), owed to the Company
or any Restricted Subsidiary) which by its terms matures on, or is extendable
or renewable at the option of the obligor to, a date more than twelve months
after the date of the creation of such indebtedness.
SECTION 3.8 EXEMPTION FROM LIMITATION ON LIENS AND SALE AND
LEASE-BACK. Notwithstanding the provisions of Sections 3.6 and 3.7, the
Company and its Restricted Subsidiaries may nevertheless create or assume liens
and enter into Sale and Lease-Back Transactions, which would otherwise require
securing of the Securities, the acquisition of another Principal Property or
the retirement of indebtedness for borrowed money under said provisions,
provided that the aggregate amount of all such liens and Sale and Lease-Back
Transactions permitted by this Section 3.8 at any time outstanding (as measured
by all indebtedness secured by all such liens then outstanding or to be so
created or assumed and the Attributable Debt of all such Sale and Lease-Back
Transactions then outstanding or to be so entered into) shall not exceed 5% of
Consolidated Net Tangible Assets, as determined in accordance with the most
recent published consolidated balance sheet of the Company.
SECTION 3.9 SECURITIES TO BE SECURED IN CERTAIN EVENTS OF MERGER,
CONSOLIDATION, ETC. If, upon any consolidation or merger of the Company with
or into any other corporation, or upon any sale, conveyance or lease of all or
substantially all the property of the Company to any other corporation, any
Principal Property would thereupon become subject to any lien, the Company,
prior to such consolidation, merger, sale, conveyance or lease, will secure the
Securities outstanding hereunder, equally and ratably with any other
obligations of the Company then entitled thereto, by a direct lien on all such
Principal Property prior to all liens other than any theretofore existing
thereon.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER
AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
ADDRESSES OF SECURITYHOLDERS. The Issuer covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the holders of the
Securities of each series:
(a) semi-annually not more than 15 days after each record
date for the payment of semi-annual interest on such Securities, as
hereinabove specified, as of such record date and semi-annually on
dates to be determined pursuant to Section 2.3 for non-interest
bearing securities in each year, and
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(b) at such other times as the Trustee may request in
writing, within 30 days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security
registrar for such series, such list shall not be required to be furnished.
SECTION 4.2 PRESERVATION AND DISCLOSURE OF SECURITYHOLDERS LISTS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the holders of
each series of Securities contained in the most recent list furnished to it as
provided in Section 4.1 or maintained by the Trustee in its capacity as
Security registrar, if so acting. The Trustee may destroy any list furnished to
it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other holders
of Securities of a particular series (in which case the applicants must all
hold Securities of such series) or with holders of all Securities with respect
to their rights under this Indenture or under such Securities and it is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section, or
(ii) inform such applicants as to the approximate number of
holders of Securities of such series or all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of
such applicants, mail to each Securityholder of such series or all Securities,
as the case may be, whose name and address appears in the information preserved
at the time by the Trustee in accordance with the provisions of subsection (a)
of this Section a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Securities of such series
or all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in
the written statement so filed, shall enter an order refusing to sustain any of
such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Securities, by receiving and holding
the same, agrees with the Issuer and the Trustee that neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the holders of Securities in accordance with the provisions of subsection
(b) of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under said subsection (b).
SECTION 4.3 REPORTS BY THE ISSUER. The Issuer covenants:
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(a) to file with the Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the
annual reports and of the information, documents, and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Issuer may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended, or if the Issuer is not required to file information,
documents, or reports pursuant to either of such Sections, then to
file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents, and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 as amended in respect of a security listed and
registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents, and reports
with respect to compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be required from time
to time by such rules and regulations; and
(c) to transmit by mail to the holders of Securities, within
30 days after the filing thereof with the Trustee such summaries of
any information, documents and reports required to be filed by the
Issuer pursuant to subsections (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 4.4 REPORTS BY THE TRUSTEE. The Trustee shall transmit
to the Securityholders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust
Indenture Act of 1939, at the times and in the manner provided
pursuant thereto. Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no later
than August 15 in each calender year, commencing in 1995.
A copy of each such report shall, at the time of such
transmission to Securityholders, be furnished to the Issuer and be filed by the
Trustee with each stock exchange upon which the Securities of any applicable
series are listed and also with the Commission. The Issuer agrees to notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF MATURITY;
WAIVER OF DEFAULT. "Event of Default" whenever used herein with respect to
Securities of any series means any one of the following events and such other
events as may be established with respect to the Securities of such series as
contemplated by Section 2.3 hereof (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body).
(a) default in the payment of any installment of interest
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(b) default in the payment of all or any part of the
principal on any of the Securities of such series as and when the same
shall become due and payable either at maturity, upon redemption, by
declaration or otherwise; or
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(c) default in the payment of any sinking fund installment
as and when the same shall become due and payable by the terms of a
Security of that series; or
(d) failure on the part of the Issuer duly to observe or
perform any other of the covenants or agreements on the part of the
Issuer in this Indenture (other than those set forth exclusively in
the terms of any series of Securities established as contemplated in
this Indenture) continued for a period of 90 days after the date on
which written notice specifying such failure, stating that such notice
is a "Notice of Default" hereunder and demanding that the Issuer
remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to
the Issuer and the Trustee by the holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding; or
(e) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Issuer or for any substantial part of its property or
ordering the winding up or liquidation of its affairs, and such decree
or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in
an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or for any
substantial part of its property, or make any general assignment for
the benefit of creditors.
If an Event of Default described in clause (a), (b) or (c) or
established pursuant to Section 2.3 with respect to the Securities of any
series at the time outstanding occurs and is continuing, then, and in each and
every such case, unless the principal of all of the Securities of such series
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of the Securities of such series
then outstanding hereunder, by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series then outstanding and the interest accrued
thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. If an Event of
Default described in clause (d), (e) or (f) occurs and is continuing, then and
in each and every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of all the Securities then
outstanding hereunder (treated as one class), by notice in writing to the Issuer
(and to the Trustee if given by Securityholders), may declare the entire
principal (or, if any Securities are Original Issue Discount Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities then outstanding and interest accrued thereon, if any, to be due and
payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest upon
all the Securities of such series (or of all the Securities, as the case may
be) and the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue installments
of interest, at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of
such series (or at the respective rates of interest or Yields to Maturity of
all the Securities, as the case may be) to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and all
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other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein--then and
in every such case the holders of a majority in aggregate principal amount of
the Securities of such series (or of all the Securities, as the case may be)
then outstanding, by written notice to the Issuer and to the Trustee, may waive
all defaults with respect to such series (or with respect to all Securities, as
the case may be--in such case, treated as a single class) and rescind and annul
such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE
DEBT. The Issuer covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity
of the Securities for such series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the holders of the Securities of such series the whole
amount that then shall have become due and payable on all Securities of such
series for principal or interest, as the case may be (with interest to the date
of such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation
to the Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and any expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of its
negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities of any series under Title 11 of
the United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other judicial proceedings relative to
the Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other
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obligor upon the Securities of any series, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized
by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial
or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the holders of the Securities of each series in respect of which
such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Securities of each series in respect of which such action was
taken, and it shall not be necessary to make any holders of the Securities
parties to any such proceedings.
SECTION 5.3 APPLICATION OF PROCEEDS. Any moneys collected by the
Trustee pursuant to this Article shall be applied in the following order at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of the several
Securities in respect of which moneys have been collected and stamping (or
otherwise noting) thereon the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of such
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series, including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and of
all expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee except as a result of negligence
or bad faith;
SECOND: In case the principal of the Securities in respect of
which moneys have been collected shall not have become and be then due
and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of
such interest, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such series, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
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THIRD: In case the principal of the Securities in respect of
which moneys have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series; and in case such moneys
shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such
principal and interest, without preference or priority of principal
over interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
SECTION 5.4 SUITS FOR ENFORCEMENT. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No holder of
any Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Securities of such
series then outstanding, or, in the case of any Event of Default described in
clause (d), (e) or (f) of Section 5.1, 25% in aggregate principal amount of all
Securities then outstanding, shall have made written request upon the Trustee
to institute such action or proceedings in its own name as trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby and the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that no one or more
holders of Securities of any series shall have any right in any manner whatever
by virtue or by availing of any provision of this Indenture to affect, disturb
or prejudice the rights of any other holder of Securities, or to obtain or seek
to obtain priority over or preference to any other such holder or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal, ratable and common benefit of all holders of Securities of the
applicable series. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE
CERTAIN SUITS. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates
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expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such holder.
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT
WAIVER OF DEFAULT. Except as provided in Section 2.9, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
by the Securityholders.
SECTION 5.9 CONTROL BY SECURITYHOLDERS. The holders of a majority in aggregate
principal amount of the Securities of each series affected (with each series
voting as a separate class) at the time outstanding shall have the right to
direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or responsible officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction shall be
unduly prejudicial to the interests of holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.1) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
holders.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10 WAIVER OF PAST DEFAULTS. Prior to the declaration of
the maturity of the Securities of any series (or of all the Securities, as the
case may be) as provided in Section 5.1, the holders of a majority in aggregate
principal amount of the Securities of such series at the time outstanding may
on behalf of the holders of all the Securities of such series waive any past
default or Event of Default described in clause (c) of Section 5.1 or any other
Event of Default for such series specified in the terms thereof as contemplated
by Section 2.3 (or, in the case of an event specified in clause (d), (e) or (f)
of Section 5.1, the holders of a majority in aggregate principal amount of all
the Securities then outstanding (voting as one class) may waive any such
default or Event of Default), and its consequences except a default (a) in the
payment of principal of or interest on any of the Securities or (b) in respect
of a covenant or provision hereof which cannot be modified or amended without
the consent of the holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the holders of the Securities of such
series (or of all of the Securities, as the case may be) shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN
CERTAIN CIRCUMSTANCES. The Trustee shall transmit to the Securityholders of
any series, as the names and addresses of such holders appear on the registry
books, notice by mail of all defaults which have occurred with respect to such
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series known to the Trustee, such notice to be transmitted within 90 days after
the occurrence thereof, unless such defaults shall have been cured before the
giving of such notice (the term "default" or "defaults" for the purposes of
this Section being hereby defined to mean any event or condition which is, or
with notice or lapse of time or both would become, an Event of Default);
provided that, except in the case of default in the payment of the principal of
or interest on any of the Securities of such series or in the making of any
sinking fund payment with respect to such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors or trustees and/or
responsible officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY
COSTS. All parties to this Indenture agree, and each holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series (or, in the case of
any suit relating to or arising under clause (d), (e) or (f) of Section 5.1,
10% in aggregate principal amount of all Securities) outstanding, or to any
suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date
expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. With respect to the holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of such series and after the curing
or waiving of all Events of Default which may have occurred with respect to
such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving of
all such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any Series shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not
be liable except for the performance of such duties and obligations
as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon any statements, certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in
the case of any such statements, certificates or opinions which by
any provision hereof are specifically
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required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or responsible officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders pursuant to Section 5.9 relating to the time,
method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that
the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the Trustee
shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing so to do by the holders of not less than a
majority in aggregate principal amount of the Securities of all series
affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this
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Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Issuer or, if
paid by the Trustee or any predecessor trustee, shall be repaid by the
Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent or attorney appointed with due care by it
hereunder; and
(h) The Trustee shall not be charged in the knowledge of any
default or Event of Default with respect to any Securities of any
series unless either (i) a Responsible Officer of the Trustee shall
have actual knowledge of the deault or Event of Default or (ii) written
notice of such default or Event of Default shall have been given to the
Trustee in accordance with the terms of the Indenture.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS, ETC.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, if operative, may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM. The Issuer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Issuer covenants and agrees to pay or
reimburse the Trustee and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of
its counsel and of all agents and other persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Issuer also covenants to indemnify the Trustee and
each predecessor Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder, including the costs
and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the holders of particular Securities, and the
Securities are hereby subordinated to such senior claim.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE, ETC.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or
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desirable that a matter be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 6.8 QUALIFICATION OF TRUSTEE; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the meaning
of the Trust Indenture Act of 1939, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act of 1939 and this Indenture. To the
extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 6.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee for each series hereunder shall at all times be a person that
is eligible pursuant to the Trust Indenture Act of 1939 to act as such and has
combined capital and surplus of at least $100,000,000. Such corporation shall
have its principal place of business in the Commonwealth of Pennsylvania or in
the Borough of Manhattan, The City of New York, if there be such a corporation
in such location willing to act upon reasonable and customary terms and
conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 6.10.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE. (a) The
Trustee, or any trustee or trustees hereafter appointed, may at any time resign
with respect to one or more or all series of Securities by giving written notice
of resignation to the Issuer and by mailing notice thereof by first-class mail
to holders of the applicable series of Securities at their last addresses as
they shall appear on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 5.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.9 and shall fail to resign after
written request therefor by the Issuer or by any such Securityholder;
or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt
or insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
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then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 5.12, any Securityholder who has been a bona fide holder
of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee
and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities of one or more series (each series voting as a class) or of all
series at the time outstanding may at any time remove the Trustee with respect
to Securities of the applicable series or of all series, as the case may be,
and appoint a successor trustee with respect to the Securities of the
applicable series or of all series, as the case may be, by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall, subject to Section
10.4, pay over to the successor trustee all moneys at the time held by it
hereunder with respect to such series and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such trustees co-trustees of the same
trust and that each such trustee shall be trustee of a trust or trusts under
separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided
in this Section 6.11, the Issuer shall mail notice thereof by first-class mail
to the holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous
with the resignation, then the notice called for by the preceding sentence may
be combined with the notice called for by Section 6.10. If the Issuer fails to
mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed
at the expense of the Issuer.
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SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
corporation shall be qualified under the provisions of Section 6.8 and eligible
under the provisions of Section 6.9, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
may adopt the certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of
the Trustee shall have; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities of any
series in the name of any predecessor Trustee shall apply only to its successor
or successors by merger, conversion or consolidation.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER.
If and when the Trustee shall be or become a creditor of the Issuer (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act of 1939 regarding the collection of
claims against the Issuer (or any such other obligor).
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in aggregate principal amount of the Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of
execution of any instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Sections 6.1 and
6.2) conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Article. For purposes of determining the principal amount of
outstanding Securities of any series the Securityholders of which are required,
requested or permitted to give any request, demand, authorization, direction,
notice, consent, waiver or take any other action under the Indenture, each
Security denominated in a Foreign Currency or composite currency shall be
deemed to have a principal amount determined by an Exchange Rate Agent (as
evidenced by a certificate of such Exchange Rate Agent) by converting the
principal amount of such Security in the currency in which such Security is
denominated into Dollars at the Exchange Rate as of the date of original
issuance of such Security.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to Sections 6.1 and 6.2, proof of the execution of any
instrument by a Securityholder or his agent or proxy and proof of the holding
by any person of any of the Securities shall be sufficient for any purpose of
this Indenture if made in the following manner:
(a) The fact and date of the execution by any such person of
any instrument may be proved by the certificate of any notary public
or other officer of any jurisdiction within the United States of
America authorized to take acknowledgments of deeds that the person
executing such instrument acknowledged to him the execution thereof,
or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by an
officer of a corporation, association or trust, trustee of a trust or
a member of a partnership on
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behalf of such corporation, association, trust or partnership, such
certificate or affidavit shall also constitute sufficient proof of
his authority.
(b) The holding of Securities shall be proved by the
Security register or by a certificate of any duly appointed registrar
thereof.
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so made to any such person, or upon
his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING. In
determining whether the holders of the requisite aggregate principal amount of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Issuer or any other obligor on the
Securities with respect to which such determination is being made or by any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the Securities
with respect to which such determination is being made shall be disregarded and
deemed not to be outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver only Securities which the
Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of
the Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described
persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts therein
set forth and of the fact that all securities not listed therein are
outstanding for the purpose of any such determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN; ACTION OF HOLDERS
BINDING ON FUTURE HOLDERS. At any time prior to (but not after) the evidencing
to the Trustee, as provided in Section 7.1, of the taking of any action by the
holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in
connection with such action, any holder of a Security the serial number of
which is shown by the evidence to be included among the serial numbers of the
Securities the holders of which have consented to such action may, by filing
written notice at the Corporate Trust Office and upon proof of holding as
provided in this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the holder of any Security shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the holders of the
percentage in aggregate principal amount of the Securities of any or all
series, as the case may be, specified in this Indenture in connection with such
action shall be conclusively binding upon the Issuer, the Trustee and the
holders of all the Securities affected by such action.
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ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions for the protection
of the holders of all or any series of Securities (and if such
Covenants are to be for the benefit of less than all series of
Securities stating that such covenants are expressly being included
solely for the benefit of such series) as its Board of Directors and
the Trustee shall consider to be for the protection of the holders of
such Securities, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit
the right of the holders of a majority in aggregate principal amount
of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem
necessary or desirable and which shall not adversely affect the
interests of the holders of the Securities;
(e) to provide for the issuance under this Indenture of
Securities in coupon form (including Securities registrable as to
principal only) and to provide for exchangeability of such Securities
with Securities issued hereunder in fully registered form, and to make
all appropriate changes for such purpose;
(f) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 2.3; and
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Section 6.11.
The Trustee is hereby authorized to join in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be
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obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
With the consent (evidenced as provided in Article Seven) of the holders of not
less than 66 2/3% in aggregate principal amount of the Securities at the time
outstanding of all series affected by such supplemental indenture (voting as
one class), the Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee may, from time to time and at any time, enter into
an indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act of 1939 as in force at the date
of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the
rights of the holders of the Securities of each such series; provided, that no
such supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 5.1 or the amount thereof provable in
bankruptcy pursuant to Section 5.2, or impair or affect the right of any
Securityholder to institute suit for the payment thereof or the right of
repayment, if any, at the option of the Securityholder without the consent of
the holder of each Security so affected, or (b) reduce the aforesaid percentage
of Securities of any series, the consent of the holders of which is required
for any such supplemental indenture, without the consent of the holders of each
Security so affected.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors certified by the Secretary or an Assistant Secretary
of the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
as aforesaid and other documents, if any, required by Section 7.1 the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall mail a notice thereof by first-class mail to the holders of Securities of
each series affected thereby at their addresses as they shall appear on the
registry books of the Issuer, setting forth in general terms the substance of
such supplemental indenture. Any failure of the Issuer to mail such notice, or
any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Issuer and the holders of
Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate
and an Opinion of Counsel as conclusive evidence that any such supplemental
indenture complies with the applicable provisions of this Indenture.
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SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken at any such meeting. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 COVENANT NOT TO MERGE, CONSOLIDATE, SELL OR CONVEY
PROPERTY EXCEPT UNDER CERTAIN CONDITIONS. Nothing contained in this Indenture
or in any of the Securities shall prevent any consolidation of the Issuer with,
or merger of the Issuer into, any other corporation or corporations (whether or
not affiliated with the Issuer), or successive consolidations or mergers to
which the Issuer or its successor or successors shall be a party or parties, or
shall prevent any sale, lease or conveyance of the property of the Issuer as an
entirety or substantially as an entirety; provided, however, that either the
Issuer shall be the continuing corporation or the successor corporation shall
be a corporation organized and existing under the laws of the United States of
America or a state thereof; and provided, further, and that the Issuer hereby
covenants and agrees, that upon any such consolidation, merger, sale, lease or
conveyance, the due and punctual payment of the principal of and interest on
all the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Issuer, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee,
executed and delivered to the Trustee, by the corporation formed by such
consolidation, or into which the Issuer shall have been merged, or which shall
have acquired such property.
SECTION 9.2 SUCCESSOR CORPORATION SUBSTITUTED. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named
herein.
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Issuer prior to such succession
any or all of the Securities issuable hereunder which theretofore shall not
have been signed by the Issuer and delivered to the Trustee; and, upon the
order of such successor corporation, instead of the Issuer, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Issuer to the Trustee for
authentication, and any Securities which such successor corporation thereafter
shall cause to be signed and delivered to the Trustee for that purpose. All of
the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Securities
had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer or any successor corporation which shall
theretofore have become such in the manner described in this Article shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
SECTION 9.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, sale, lease or
conveyance, and any such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
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ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE AND SECURITIES; UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of all series outstanding hereunder, as and when
the same shall have become due and payable or (b) the Issuer shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (c) (i) all the securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in the currency or currency unit in which such Securities of such series
are payable (other than moneys repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 10.4) sufficient to pay at maturity or upon
redemption all Securities of such series not theretofore delivered to the
Trustee for cancellation, including principal and interest due or to become due
to such date of maturity or redemption date, as the case may be, and if, in any
such case, the Issuer shall also pay or cause to be paid all other sums payable
hereunder by the Issuer with respect to Securities of such series, then this
Indenture shall cease to be of further effect with respect to Securities of
such series (except as to (i) rights of registration of transfer and exchange,
and the Issuer's right of optional redemption, (ii) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of the
holders to receive payments of principal thereof and interest thereon from the
trust fund established pursuant to Section 10.1 (c) or Section 10.2, and
remaining rights of the holders to receive mandatory sinking fund payments, if
any from the trust fund established pursuant to Section 10.1 (c) or Section
10.2, (iv) the rights, obligations and immunities of the Trustee hereunder and
(v) the rights of the Securityholders of such series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or
any of them), and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture with respect to Securities of such series. The
Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Securities of such series.
SECTION 10.2 DEFEASANCE. (A) For purposes of Section 10.1 the Issuer shall be
deemed to have paid the principal of, premium, if any, and interest, if any, on
any Security or Securities outstanding hereunder as and when the same shall have
become due and payable, if the Issuer shall have irrevocably deposited or caused
to be deposited in trust with the Trustee (i) funds in an amount (in such
currency, currencies or currency unit or units in which such outstanding
Securities are payable) or (ii) in the case of Securities denominated in
Dollars, U.S. Government Obligations (as defined below) or, in the case of
Securities denominated in a Foreign Currency, Foreign Government Securities,
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide, not later than one business day before
the due date of any payment of principal (including any premium) and interest,
if any, under such Securities, money in an amount or (iii) a combination (i) and
(ii) sufficient (in the opinion with respect to (ii) and (iii) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) to pay and discharge each
installment of principal of (including any premium), and interest, if any, on,
such outstanding Securities on the dates such installments of interest or
principal are due, in the currency, currencies or currency unit or units, in
which such Securities are payable; provided, however, that the Issuer shall not
make or cause to be made the deposit provided by this Section 10.2(A) with
respect to Securities denominated in a Foreign Currency unless the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that there
will not occur any violation of the Investment Company Act of 1940, as amended,
on the part of the Issuer, the trust funds representing such deposit or the
Trustee as a result of such deposit and the related exercise of the Issuer's
option under this Section 10.2; provided further, however, that notwithstanding
the foregoing, with respect to any series of Securities which shall at the time
be listed for trading on The New York Stock Exchange, there shall be no deposit
of funds in cash and/or in U.S. Government Obligations or Foreign Government
Securities with the Trustee to pay the principal amount, the redemption price or
any installment of interest in order to discharge the Company's obligation in
respect of any such payment if at such time the rules of The New York Stock
Exchange prohibit such deposit with the Trustee if such discharge will (or may)
occur more than ten (10) days in advance
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of the date on which such funds or payments on such U.S. Government
Obligations or Foreign Government Securities become available to holders of
such Securities entitled to receive such payment. Concurrently with any such
deposit with the Trustee, the Company shall deliver to the Trustee an Officers'
Certificate to the effect that under the laws in effect on the date of such
deposit the amount of such deposit will be sufficient, after payment of all
Federal, state and local taxes in respect thereof payable by the Trustee, and
without consideration of any reinvestment of any principal of or interest on
any such U.S. Government Obligations or Foreign Government Securities, to
retire at maturity or upon redemption such Securities, including principal,
premium, if any, and interest, if any, due or to become due to such date of
maturity or redemption.
Upon receipt by the Trustee of funds, U.S. Government Obligations
and/or Foreign Government Securities, in accordance with this Section, together
with any required documents, the Trustee shall, upon receipt of a Company
Order, acknowledge in writing that the Security or Securities or portions
thereof with respect to which such deposit was made are deemed to have been
paid for all purposes of this Indenture and that the entire indebtedness of the
Company in respect thereof is deemed to have been satisfied and discharged.
If payment at their stated maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be provided for in the
manner and with the effect provided in this Section, the Trustee shall select
such Securities, or portions of principal amount thereof, in the manner
specified in Section 12.2 for selection for redemption of less than all the
Securities of a series or Tranche.
(B) A Security of any particular series may also provide that the
Issuer shall as a condition of effectuating this Section 10.2 have either:
(a) delivered to the Trustee (i) an Officers' Certificate
and Opinion of Counsel to the effect that (1) for Federal income tax
purposes, the deposit of such cash and/or U.S. Government Obligations
or Foreign Government Securities in trust with the Trustee and the
satisfaction and discharge of this Indenture with respect to
Securities of such series pursuant to this Section 10.2 will not cause
the holders of Securities of such series to recognize income, gain or
loss at such time, (2) for Federal income tax purposes, such holders
(and future holders of Securities of such series) will be subject to
tax in the same manner as if the events described in the preceding
clause (1) had not occurred, and (ii) an undertaking providing that
the Issuer shall indemnify the Trustee on an after-tax basis against
any increase in tax liability caused by the defeasance referred to in
this Section 10.2 resulting from any change in Federal, state or local
tax law subsequent to the date referred to in the last sentence of
paragraph (A) of this Section 10.2 to the extent necessary to retire
the Securities of such series as provided in the last sentence of
paragraph A of this Section 10.2; or, in the alternative,
(b) entered into an undertaking providing that the Issuer
shall indemnify the Trustee and the holders (and future holders) of
Securities of such series on an after-tax basis against any increase
in tax liability caused by the defeasance referred to in this Section
10.2.
SECTION 10.3 SATISFACTION AND DISCHARGE OF SECURITIES.
Securities of a series shall be deemed to have been paid in full as between the
Issuer and the respective holders (and future holders) of Securities of such
series upon the satisfaction and discharge of the Indenture with respect to
Securities of such series pursuant to Section 10.1, except that in the case of
such satisfaction and discharge as a result of compliance with Section 10.2,
the Securities of such series shall only be deemed to have been paid in full as
between the Issuer and the respective holders (and future holders) of
Securities of such series if the deposit in trust with the Trustee by the
Issuer of the funds in cash and/or U.S. Government Obligations or Foreign
Government Securities as provided in Section 10.2 is not subsequently deemed a
preference under the United States Bankruptcy Code as then in effect.
SECTION 10.4 APPLICATION BY TRUSTEE OF MONEYS, U.S. GOVERNMENT
OBLIGATIONS OR FOREIGN GOVERNMENT SECURITIES DEPOSITED FOR PAYMENT OF
SECURITIES. Subject to Section 10.6, all moneys, U.S. Government Obligations
or Foreign Government Securities deposited with the Trustee pursuant to Section
10.1 or Section 10.2 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Issuer acting as its
own paying agent), to the holders of the particular Securities of such series
for the payment or redemption of which such moneys, U.S. Government Obligations
or Foreign Government Securities
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have been deposited with the Trustee, of all sums due and to become due thereon
for principal, if any, and interest; but such moneys, U.S. Government
Obligations or Foreign Government Securities need not be segregated from
other funds except to the extent required by law.
SECTION 10.5 REPAYMENT OR DELIVERY OF MONEYS, U.S. GOVERNMENT
OBLIGATIONS OR FOREIGN GOVERNMENT SECURITIES HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys, U.S. Government Obligations or Foreign
Government Securities then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be paid or delivered to the Trustee and thereupon such paying agent
shall be released from all further liability with respect to such moneys, U.S.
Government Obligations or Foreign Government Securities.
SECTION 10.6 RETURN OF MONEYS, U.S. GOVERNMENT OBLIGATIONS OR FOREIGN
GOVERNMENT SECURITIES HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR THREE
YEARS. Any moneys, U.S. Government Obligations or Foreign Government
Securities deposited with or paid to the Trustee or any paying agent for the
payment of the principal of, premium, if any, or interest on any Security of
any series and not applied but remaining unclaimed for three years after the
date upon which such principal, premium or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, be repaid or delivered to the Issuer by the Trustee
for such series or such paying agent, and the holder of the Security of such
series shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such moneys, U.S.
Government Obligations or Foreign Government Securities shall thereupon cease.
SECTION 10.7 REINSTATEMENT. If the Trustee is unable to apply any
money, U.S. Government Obligations or Foreign Government Securities in
accordance with Section 10.1 or 10.2 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Issuer's
obligations under this Indenture and such Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 10.1 or 10.2
until such time as the Trustee is permitted to apply all such money, U.S.
Government Obligations or Foreign Government Securities in accordance with
Section 10.1 or 10.2; provided, however, that if the Company has made any
payment of interest on or principal of (and premium, if any) on such Securities
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such series of Securities to receive
such payment from the money, U.S. Government Obligations or Foreign Government
Securities held by the Trustee.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF
ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the
holders thereof and as part of the consideration for the issue of the
Securities.
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES
AND SECURITYHOLDERS. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the holders of the Securities.
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SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 NOTICE AND DEMANDS ON ISSUER, TRUSTEE AND
SECURITYHOLDERS. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer
with the Trustee) to AIR PRODUCTS AND CHEMICALS, INC., 7201 Hamilton Boulevard,
Allentown, Pennsylvania 18195-1501, Attention: Corporate Secretary. Any notice,
direction, request or demand by the Issuer or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to holders, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each holder entitled
thereto, at his last address as it appears in the Security register. In any
case where notice to holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular holder shall
affect the sufficiency of such notice with respect to other holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care should
know that the same are erroneous.
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Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. If the
date of maturity of interest on or principal of the Securities of any series or
the date fixed for redemption or repayment of any such Security shall not be a
business day at the place or places designated for payment in respect of such
Securities, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding business day with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date.
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act of 1939, which is required under
such Act to be part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act of 1939 which may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be.
SECTION 11.8 NEW YORK LAW TO GOVERN. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.9 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 EFFECT OF HEADINGS. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11 MONEYS OF DIFFERENT CURRENCIES TO BE SEGREGATED. The
Trustee shall segregate all moneys, funds and accounts held by the Trustee
hereunder in one currency from any money, funds or accounts in any other
currencies, notwithstanding any provision herein which would otherwise permit
the Trustee to commingle such amounts.
SECTION 11.12 PAYMENT TO BE IN PROPER CURRENCY. Each reference in
any Security, or in the resolution of the Board of Directors relating
thereto, to any currency shall be of the essence. Except as provided in Section
2.13, the obligation of the Issuer to make any payment of principal of (and
premium, if any) and interest on any Security shall not be discharged or
satisfied by any tender by the Issuer, or recovery by the Trustee, in any
currency other than the Specified Currency then due and payable. If any such
tender or recovery is in a currency other than the Specified Currency, the
Trustee may (but shall not be required to) take such actions as it considers
appropriate to exchange such currency for the Specified Currency. The costs and
risks of any such exchange, including without limitation the risks of delay and
exchange rate fluctuation, shall be borne by the Issuer, and the Issuer shall
remain fully liable for any shortfall or delinquency in the full amount of
Specified Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. The Issuer hereby waives any defense of payment
based upon any such tender or recovery which is not in the Specified Currency,
or which, when exchanged for the Specified Currency by the Trustee is less than
the full amount of Specified Currency then due and payable.
Any costs incurred by or on behalf of the Issuer (other than costs
incurred by the Trustee that are passed on to the Issuer as provided above) in
connection with the conversion of any Foreign Currency to Dollars pursuant to
an election made by a Securityholder in accordance with Section 2.13 shall be
borne by the
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Securityholder making such an election through deduction from payments required
to be made to such Securityholder pursuant to the terms of the Security or this
Indenture.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
2.3 for Securities of such series.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice of
redemption to the holders of Securities of any series to be redeemed as a whole
or in part shall be given by mailing notice of such redemption by first class
mail, postage prepaid, at least 30 days and not more than 60 days prior to the
date fixed for redemption to such holders of Securities of such series at their
last addresses as they shall appear upon the registry books. Any notice which
is mailed in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the holder receives the notice. Failure to give
notice by mail or any defect in the notice to the holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such holder shall specify the number
of each Security of such series to be redeemed, the date fixed for redemption,
the redemption price, the place or places of payment, that payment will be made
upon presentation and surrender of such Securities, that such redemption is
pursuant to the mandatory or optional sinking fund, or both, if such be the
case, that interest accrued to the date fixed for redemption will be paid as
specified in said notice and that on and after said date interest thereon or on
the portions thereof to be redeemed will cease to accrue. In case any Security
of a series is to be redeemed in part only the notice of redemption shall state
the portion of the principal amount thereof to be redeemed and shall state that
on and after the date fixed for redemption, upon surrender of such Security, a
new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed
at the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee for such series in the name and at the expense of the
Issuer.
At least one business day prior to the redemption date specified in
the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer
is acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If less than all the outstanding Securities of a series
are to be redeemed, the Issuer will deliver to the Trustee at least 70 days
prior to the date fixed for redemption an Officers' Certificate stating the
aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in an amount equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and
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payable on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue and, except as provided in Sections
6.5 and 10.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price, together with interest accrued thereon to the date fixed for
redemption; provided that any semi-annual payment of interest becoming due on
the date fixed for redemption shall be payable to the holders of such Securities
registered as such on the relevant record date subject to the terms and
provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Discount Security)
borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR
SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which
notice of redemption may be given as being owned of record and beneficially by,
and not pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer.
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional sinking fund
payment." The last date on which a sinking fund payment may be made in each
year is herein referred to as the "sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, or (b) receive credit for Securities of
such series (not previously so credited) redeemed either at the election of the
Issuer pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities. Securities so delivered or credited shall be received and credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 11.5)
signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by delivery and credit of Securities of such series,
(b) stating that none of the Securities of such series to be delivered and
credited has theretofore been so delivered and credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be
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delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such written statement (or reasonably promptly thereafter if acceptable to the
Trustee). Such written statement shall be irrevocable and upon its receipt by
the Trustee the Issuer shall become unconditionally obligated to make the cash
payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such sixtieth day, to deliver such written statement and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) made in cash plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall
so request) with respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 or less and the Issuer makes no such request then it shall be
carried over until a sum in excess of $50,000 is available. The Trustee shall
select, in the manner provided in Section 12.2, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Issuer) inform the Issuer of the serial numbers of the Securities of such
series (or portions thereof) so selected. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 12.2 (and with the
effect provided in Section 12.3) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment and, together with
such payment, shall be applied in accordance with the provisions of this
Section 12.4. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the principal of, and
interest on, the Securities of such series at maturity.
At least one business day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities
of a series with sinking fund moneys or mail any notice of redemption of
Securities for such series by operation of the sinking fund during the
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continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such default or Event of Default, be deemed to
have been collected under Article Five and held for the payment of all
Securities of such series. In case such Event of Default shall have been waived
as provided in Section 5.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of January 10, 1995.
[CORPORATE SEAL]
Attest: AIR PRODUCTS AND CHEMICALS, INC.
By /s/ Lynn German Lang By /s/ Gerald A. White
---------------------------- -------------------------------
Assistant Secretary Senior Vice President-Finance
[CORPORATE SEAL]
Attest: FIRST FIDELITY BANK, NATIONAL ASSOCIATION,
Trustee
By /s/ Terence C. McPoyle By /s/ John Clapham
---------------------------- -------------------------------
Assistant Secretary Assistant Vice President
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COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF LEHIGH )
On this 18th day of January 1995, before me personally came Gerald A.
White, to me personally known, who, being by me duly sworn, did depose and say
that he resides in Center Valley, Pennsylvania; that he is Senior Vice
President-Finance of AIR PRODUCTS AND CHEMICALS, INC., the Corporation
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
My Commission expires:
[NOTARIAL SEAL]
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COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF PHILADELPHIA )
On this 19th January 1995, before me personally came John
Clapham to me personally known, who, being by me duly sworn, did depose and say
that he resides in Berwyn, Pennsylvania; that he is an Assistant Vice
President of FIRST FIDELITY BANK, NATIONAL ASSOCIATION, the national banking
association described in and which executed the above instrument; that he knows
the corporate seal of said national banking association; that the seal affixed
to said instrument is such corporate seal; that it was so affixed by authority
of the Board of Directors of said national banking association, and that he
signed his name thereto by like authority.
My Commission expires:
[NOTARIAL SEAL]
49
<PAGE> 1
Exhibit 5
January 19, 1995
Air Products and Chemicals, Inc.
7201 Hamilton Boulevard
Allentown, PA 1819501501
RE: Air Products and Chemicals, Inc.--Registration Statement on
Form S-3 for $400,000,000 Principal Amount of Medium-Term Notes,
Series D
Ladies and Gentlemen:
I am an Assistant General Counsel of Air Products and Chemicals, Inc., a
Delaware corporation (the "Company"), and have acted in such capacity in
connection with the proposed issuance and sale of the Company of up to
$400,000,000 aggregate principal amount of its debt securities (the
"Securities") as described in the Registration Statement on Form S-3, filed by
the Company pursuant to the Securities Act of 1933 on January 19, 1995 (the
"Registration Statement"). The Securities are to be issued under an Indenture
dated as of January 10, 1995 (the "Indenture"), between the Company and First
Fidelity Bank, National Association, as Trustee.
I or members of the Company's legal staff have examined original or
copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records, certificates of public officials and other
instruments as were deemed necessary or advisable for the purpose of enabling
me to render this opinion.
Based upon the foregoing, in my capacity as an Assistant General Counsel
of the Company, I am of the opinion that when the Registration Statement has
become effective, and the Securities have been duly executed by the Company,
duly authenticated by the Trustee and delivered by the Company against payment
therefor in accordance with the terms of the Indenture, the Securities will be
legally issued and will constitute valid and binding obligations of the Company
in accordance with their terms (except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability).
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Robert F. Gerkens
-------------------------------
Robert F. Gerkens
Assistant General Counsel
<PAGE> 1
Exhibit 23(b)
January 19, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-1004
RE: Air Products and Chemicals, Inc.--Registration Statement on
Form S-3 for $400,000,000 Principal Amount of Medium-Term Notes,
Series D
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 of Air Products and
Chemicals, Inc. (the "Company"), filed pursuant to the Securities Act of 1933
(the "Registration Statement"), in connection with the proposed issuance and
sale of the Company of up to $400,000,000 aggregate principal amount of its
Debt Securities and the prospectus included in the Registration Statement which
refers to us under the caption "Legal Opinions."
The undersigned hereby consent to the reference to us in such prospectus
under the caption "Legal Opinions."
Very truly yours,
/s/ James H. Agger
James H. Agger
Vice President, General Counsel
and Secretary
/s/ Robert F. Gerkens
Robert F. Gerkens
Assistant General Counsel
<PAGE> 1
Exhibit 24
MEDIUM TERM NOTES
SERIES D
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints HAROLD A. WAGNER or GERALD A. WHITE or
JAMES H. AGGER, acting severally, his/her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him/her and in
his/her name, place and stead, in any and all capacities, to sign a
Registration Statement for the registration of up to $400,000,000 aggregate
principal amount of debt securities of Air Products and Chemicals, Inc., and
any and all amendments thereto, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent, or his substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities and Exchange Act of
1933, this Power of Attorney has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Harold A. Wagner Director and Chairman October 20, 1994
- ------------------------------ of the Board
(Harold A. Wagner) (Principal Executive Officer)
/s/ Dexter F. Baker Director October 20, 1994
- ------------------------------
(Dexter F. Baker)
/s/ Tom H. Barrett Director October 20, 1994
- ------------------------------
(Tom H. Barrett)
/s/ L. Paul Bremer, III Director October 20, 1994
- ------------------------------
(L. Paul Bremer, III)
/s/ Will M. Caldwell Director October 20, 1994
- ------------------------------
(Will M. Caldwell)
/s/ Robert Cizik Director October 20, 1994
- ------------------------------
(Robert Cizik)
/s/ Ruth M. Davis Director October 20, 1994
- ------------------------------
(Ruth M. Davis)
/s/ Robert F. Dee Director October 20, 1994
- ------------------------------
(Robert F. Dee)
/s/ Terry R. Lautenbach Director October 20, 1994
- ------------------------------
(Terry R. Lautenbach)
/s/ Walter F. Raab Director October 20, 1994
- ------------------------------
(Walter F. Raab)
/s/ Judith Rodin Director October 20, 1994
- ------------------------------
(Judith Rodin)
/s/ Takeo Shiina Director October 20, 1994
- ------------------------------
(Takeo Shiina)
</TABLE>
<PAGE> 1
Exhibit 25
______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ___
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
(Name of Trustee)
22-1147033
(I.R.S. Employer Identification No.)
101 NORTHSIDE PLAZA, ELKTON, MARYLAND
(Address of Principal Executive Offices)
21921
(Zip Code)
AIR PRODUCTS AND CHEMICALS, INC.
(Exact name of registrans as specified in their charters)
DELAWARE
(State of Incorporation)
23-1274455
(I.R.S. Employer Identification No.)
7201 HAMILTON BOULEVARD
ALLENTOWN, PA 18195-1501
(610) 481-7351
(Address of Principal Executive Offices)
DEBT SECURITIES
Application relates to all securities registered pursuant
to the delayed offering registration statement.
(Title of Indenture Securities)
<PAGE> 2
1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT:
Comptroller of the Currency
United States Department of the Treasury
Washington, D.C. 20219
Federal Reserve Bank (3rd District)
Philadelphia, Pennsylvania 19106
Federal Deposit Insurance Corporation
Washington, D.C. 20429
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
Not applicable - see answer to item 13.
4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
Not applicable - see answer to item 13.
2
<PAGE> 3
5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable - see answer to item 13.
6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER, AND
EXECUTIVE OFFICER OF THE OBLIGOR:
Not applicable - see answer to item 13.
7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER:
Not applicable - see answer to item 13.
8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE:
Not applicable - see answer to item 13.
9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION
3
<PAGE> 4
AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER ANY OF WHICH ARE SO OWNED OR
HELD BY THE TRUSTEE:
Not applicable - see answer to item 13.
10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING STOCK OF THE OBLIGOR OR
(2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
Not applicable - see answer to item 13.
11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE:
Not applicable - see answer to item 13.
12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
Not applicable - see answer to item 13.
13. DEFAULTS BY THE OBLIGOR.
(a) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO
THE SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
None.
(b) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER
WHICH ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE
4
<PAGE> 5
OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE OUTSTANDING SERIES OF SECURITIES
UNDER THE INDENTURE, STATE WHETHER THERE HAS BEEN A DEFAULT UNDER ANY SUCH
INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE
NATURE OF ANY SUCH DEFAULT.
None.
14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable - see answer to item 13.
15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE TRUSTEE IS AUTHORIZED
TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE
ACT.
Not applicable - trustee is a national banking association organized
under the laws of the United States.
16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
X 1. Copy of Articles of Association of the trustee as now in effect.
- ---
2. Copy of the Certificate of the Comptroller of the Currency dated
- --- January 11, 1994, evidencing the authority of the trustee to transact
business.*
3. Copy of the authorization of the trustee to exercise fiduciary
- --- powers.*
X 4. Copy of existing by-laws of the trustee.
- ---
5. Copy of each indenture referred to in Item 4, if the obligor is in
- --- default, not applicable.
X 6. Consent of the trustee required by Section 321(b) of the Act.
- ---
5
<PAGE> 6
X 7. Copy of report of condition of the trustee at the close of business on
- --- September 30, 1994, published pursuant to the requirements of its
supervising authority.
8. Copy of any order pursuant to which the foreign trustee is authorized
- --- to act as sole trustee under indentures qualified or to be qualified
under the Act, not applicable.
9. Consent to service of process required of foreign trustees pursuant to
- --- Rule 10a-4 under the Act, not applicable.
_________________________
*Previously filed with the Securities and Exchange Commission
on February 11, 1994 as an exhibit to Form T-1 in connection with Registration
Statement No. 22-73340 and incorporated herein by reference.
NOTE
The trustee disclaims responsibility for the accuracy or completeness
of information contained in this Statement of Eligibility and Qualification not
known to the trustee and not obtainable by it through reasonable investigation
and as to which information it has obtained from the obligor and has had to
rely or will obtain from the principal underwriters and will have to rely.
6
<PAGE> 7
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, First Fidelity Bank, National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Elkton
and State of Maryland, on the 12th day of January 1995.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
By: /s/ JOHN H. CLAPHAM
--------------------------------
John H. Clapham
Assistant Vice President
7
<PAGE> 8
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
(EFFECTIVE NOVEMBER 29, 1994)
For purposes of organizing an Association to carry on the
business of banking under the laws of the United States, the undersigned do
enter into the following Articles of Association:
FIRST. The title of this Association shall be First Fidelity
Bank, National Association.
SECOND. The Main Office of the Association shall be in
Elkton, County of Cecil, State of Maryland. The general business of the
Association shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall
consist of not less than five nor more than twenty-five persons, the exact
number to be fixed and determined from time to time by resolution of a majority
of the full Board of Directors or by resolution of the shareholders at any
annual or special meeting thereof. Each Director, during the full term of his
directorship, shall own a minimum of (a) $1,000 par value of stock of this
Association or (b) preferred or common stock of First Fidelity Bancorporation
having (i) aggregate par value equal to or greater than $1,000, (ii) aggregate
shareholders' equity equal to or greater than $1,000 or (iii) aggregate fair
market value equal to or greater than $1,000. Any vacancy in the Board of
Directors may be filled by action of the Board of Directors.
FOURTH. There shall be an annual meeting of the shareholders
the purpose of which shall be the election of Directors and the transaction of
whatever other business may be brought before said meeting. It shall be held
at the main office or other convenient place as the Board of Directors may
designate, on the day of each year specified therefor in the By-laws, but if no
election is held on that day, it may be held on any subsequent day according to
such lawful rules as may be presented by the Board of Directors.
FIFTH. (A) General. The amount of capital stock of this
Association shall be (i) 25,000,000 shares of common stock of the par value of
twenty dollars ($20.00) each (the "Common Stock") and (ii) 160,540 shares of
preferred stock of the par value of one dollar ($1.00) each (the
"Non-Cumulative Preferred Stock"), having the rights, privileges and
preferences set forth below, but said capital stock may be increased or
decreased from time to time in accordance with the provisions of the laws of
the United States.
<PAGE> 9
(B) Terms of the Non-Cumulative Preferred Stock.
1. General. Each share of Non-Cumulative Preferred Stock
shall be identical in all respects with the other shares of Non-Cumulative
Preferred Stock. The authorized number of shares of Non-Cumulative Preferred
Stock may from time to time be increased or decreased (but not below the number
then outstanding) by the Board of Directors. Shares of Non-Cumulative
Preferred Stock redeemed by the Association shall be canceled and shall revert
to authorized but unissued shares of Non-Cumulative Preferred Stock.
2. Dividends.
(a) General. The holders of Non-Cumulative Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, but only out of funds legally available therefor, non-cumulative
cash dividends at the annual rate of $83.75 per share, and no more, payable
quarterly on the first days of December, March, June and September,
respectively, in each year with respect to the quarterly dividend period (or
portion thereof) ending on the day preceding such respective dividend payment
date, to shareholders of record on the respective date, not exceeding fifty
days preceding such dividend payment date, fixed for that purpose by the Board
of Directors in advance of payment of each particular dividend.
Notwithstanding the foregoing, the cash dividend to be paid on the first
dividend payment date after the initial issuance of Non-Cumulative Preferred
Stock and on any dividend payment date with respect to a partial dividend
period shall be $83.75 per share multiplied by the fraction produced by
dividing the number of days since such initial issuance or in such partial
dividend period, as the case may be, by 360.
(b) Non-cumulative Dividends. Dividends on the shares of
Non-Cumulative Stock shall not be cumulative and no rights shall accrue to the
holders of shares of Non-Cumulative Preferred Stock by reason of the fact that
the Association may fail to declare or pay dividends on the shares of
Non-Cumulative Preferred Stock in any amount in any quarterly dividend period,
whether or not the earnings of the Association in any quarterly dividend period
were sufficient to pay such dividends in whole or in part, and the Association
shall have no obligation at any time to pay any such dividend.
(c) Payment of Dividends. So long as any share of
Non-Cumulative Preferred Stock remains outstanding, no dividend whatsoever
shall be paid or declared and no distribution made on any junior stock other
than a dividend payable in junior stock, and no shares of junior stock shall be
purchased, redeemed or otherwise acquired for consideration by the Association,
directly or indirectly (other than as a result of a reclassification of junior
stock, or the exchange or conversion of one junior stock for or into another
junior stock, or other than through the use of the proceeds of a substantially
contemporaneous sale of other junior stock), unless all dividends on all shares
of Non-Cumulative Preferred Stock and non-cumulative Preferred Stock ranking on
a parity as
2
<PAGE> 10
to dividends with the shares of Non-Cumulative Preferred Stock for the most
recent dividend period ended prior to the date of such payment or declaration
shall have been paid in full and all dividends on all shares of cumulative
Preferred Stock ranking on a parity as to dividends with the shares of
Non-Cumulative Stock (notwithstanding that dividends on such stock are
cumulative) for all past dividend periods shall have been paid in full.
Subject to the foregoing, and not otherwise, such dividends (payable in cash,
stock or otherwise) as may be determined by the Board of Directors may be
declared and paid on any junior stock from time to time out of any funds
legally available therefor, and the Non-Cumulative Preferred Stock shall not be
entitled to participate in any such dividends, whether payable in cash, stock
or otherwise. No dividends shall be paid or declared upon any shares of any
class or series of stock of the Association ranking on a parity (whether
dividends on such stock are cumulative or non-cumulative) with the
Non-Cumulative Preferred Stock in the payment of dividends for any period
unless at or prior to the time of such payment or declaration all dividends
payable on the Non-Cumulative Preferred Stock for the most recent dividend
period ended prior to the date of such payment or declaration shall have been
paid in full. When dividends are not paid in full, as aforesaid, upon the Non-
Cumulative Preferred Stock and any other series of Preferred Stock ranking on a
parity as to dividends (whether dividends on such stock are cumulative or
non-cumulative) with the Non-Cumulative Preferred Stock, all dividends declared
upon the Non-Cumulative Preferred Stock and any other series of Preferred Stock
ranking on a parity as to dividends with the Non-Cumulative Preferred Stock
shall be declared pro rata so that the amount of dividends declared per share
on the Non-Cumulative Preferred Stock and such other Preferred Stock shall in
all cases bear to each other the same ratio that accrued dividends per share on
the Non-Cumulative Preferred Stock (but without any accumulation in respect of
any unpaid dividends for prior dividend periods on the shares of Non-
Cumulative Stock) and such other Preferred Stock bear to each other. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on the Non-Cumulative Preferred Stock which
may be in arrears.
3. Voting. The holders of Non-Cumulative Preferred Stock
shall not have any right to vote for the election of directors or for any other
purpose.
4. Redemption.
(a) Optional Redemption. The Association, at the option of
the Board of Directors, may redeem the whole or any part of the shares of
Non-Cumulative Preferred Stock at the time outstanding, at any time or from
time to time after the fifth anniversary of the date of original issuance of
the Non-Cumulative Preferred Stock, upon notice given as hereinafter specified,
at the redemption price per share equal to $1,000 plus an amount equal to the
amount of accrued and unpaid dividends from the immediately preceding dividend
payment date (but without any accumulation for unpaid dividends for prior
dividend periods on the shares of Non-Cumulative Preferred Stock) to the
redemption date.
3
<PAGE> 11
(b) Procedures. Notice of every redemption of shares of
Non-Cumulative Preferred Stock shall be mailed by first class mail, postage
prepaid, addressed to the holders of record of the shares to be redeemed at
their respective last addresses as they shall appear on the books of the
Association. Such mailing shall be at least 10 days and not more than 60 days
prior to the date fixed for redemption. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the shareholder receives such notice, and failure duly to give
such notice by mail, or any defect in such notice, to any holder of shares of
Non-Cumulative Preferred Stock designated for redemption shall not affect the
validity of the proceedings for the redemption of any other shares of
Non-Cumulative Preferred Stock.
In case of redemption of a part only of the shares of
Non-Cumulative Preferred Stock at the time outstanding the redemption may be
either pro rata or by lot or by such other means as the Board of Directors of
the Association in its discretion shall determine. The Board of Directors
shall have full power and authority, subject to the provisions herein
contained, to prescribe the terms and conditions upon which shares of the
Non-Cumulative Preferred Stock shall be redeemed from time to time.
If notice of redemption shall have been duly given, and, if on
or before the redemption date specified therein, all funds necessary for such
redemption shall have been set aside by the Association, separate and apart
from its other funds, in trust for the pro rata benefit of the holders of the
shares called for redemption, so as to be and continue to be available
therefor, then, notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, all shares so
called for redemption shall no longer be deemed outstanding on and after such
redemption date, and all rights with respect to such shares shall forthwith on
such redemption date cease and terminate, except only the right of the holders
thereof to receive the amount payable on redemption thereof, without interest.
If such notice of redemption shall have been duly given or if
the Association shall have given to the bank or trust company hereinafter
referred to irrevocable authorization promptly to give such notice, and, if on
or before the redemption date specified therein, the funds necessary for such
redemption shall have been deposited by the Association with such bank or trust
company in trust for the pro rata benefit of the holders of the shares called
for redemption, then, notwithstanding that any certificate for shares so called
for redemption shall not have been surrendered for cancellation, from and after
the time of such deposit, all shares so called for redemption shall no longer
be deemed to be outstanding and all rights with respect to such shares shall
forthwith cease and terminate, except only the right of the holders thereof to
receive from such bank or trust company at any time after the time of such
deposit the funds so deposited, without interest. The aforesaid bank or trust
company shall be organized and in good standing under the laws of the United
States of America or any state thereof, shall have capital, surplus and
undivided profits aggregating at least $50,000,000 according to its last
published statement of condition, and shall be identified
4
<PAGE> 12
in the notice of redemption. Any interest accrued on such funds shall be paid
to the Association from time to time. In case fewer than all the shares of
Non-Cumulative Preferred Stock represented by a stock certificate are redeemed,
a new certificate shall be issued representing the unredeemed shares without
cost to the holder thereof.
Any funds so set aside or deposited, as the case may be, and
unclaimed at the end of the relevant escheat period under applicable state law
from such redemption date shall, to the extent permitted by law, be released or
repaid to the Association, after which repayment the holders of the shares so
called for redemption shall look only to the Association for payment thereof.
5. Liquidation.
(a) Liquidation Preference. In the event of any voluntary
liquidation, dissolution or winding up of the affairs of the Association, the
holders of Non-Cumulative Preferred Stock shall be entitled, before any
distribution or payment is made to the holders of any junior stock, to be paid
in full an amount per share equal to an amount equal to $1,000 plus an amount
equal to the amount of accrued and unpaid dividends per share from the
immediately preceding dividend payment date (but without any accumulation for
unpaid dividends for prior dividend periods on the shares of Non-Cumulative
Preferred Stock) per share to such distribution or payment date (the
"liquidation amount").
In the event of any involuntary liquidation, dissolution or
winding up of the affairs of the Association, then, before any distribution or
payment shall be made to the holders of any junior stock, the holders of
Non-Cumulative Preferred Stock shall be entitled to be paid in full an amount
per share equal to the liquidation amount.
If such payment shall have been made in full to all holders of
shares of Non-Cumulative Preferred Stock, the remaining assets of the
Association shall be distributed among the holders of junior stock, according
to their respective rights and preferences and in each case according to their
respective numbers of shares.
(b) Insufficient Assets. In the event that, upon any such
voluntary or involuntary liquidation, dissolution or winding up, the available
assets of the Association are insufficient to pay such liquidation amount on
all outstanding shares of Non-Cumulative Preferred Stock, then the holders of
Non-Cumulative Preferred Stock shall share ratably in any distribution of
assets in proportion to the full amounts to which they would otherwise be
respectively entitled.
(c) Interpretation. For the purposes of this paragraph 5,
the consolidation or merger of the Association with any other corporation or
association shall not be deemed to constitute a liquidation, dissolution or
winding up of the Association.
5
<PAGE> 13
6. Preemptive Rights. The Non-Cumulative Preferred Stock is
not entitled to any preemptive, subscription, conversion or exchange rights in
respect of any securities of the Association.
7. Definitions. As used herein with respect to the
Non-Cumulative Preferred Stock, the following terms shall have the following
meanings:
(a) The term "junior stock" shall mean the Common Stock
and any other class or series of shares of the Association hereafter
authorized over which the Non-Cumulative Preferred Stock has
preference or priority in the payment of dividends or in the
distribution of assets on any liquidation, dissolution or winding up
of the Association.
(b) The term "accrued dividends", with respect to any
share of any class or series, shall mean an amount computed at the
annual dividend rate for the class or series of which the particular
share is a part, from, if such share is cumulative, the date on which
dividends on such share became cumulative to and including the date to
which such dividends are to be accrued, less the aggregate amount of
all dividends theretofore paid thereon and, if such share is non-
cumulative, the relevant date designated to and including the date to
which such dividends are accrued, less the aggregate amount of all
dividends theretofore paid with respect to such period.
(c) The term "Preferred Stock" shall mean all outstanding
shares of all series of preferred stock of the Association as defined
in this Article Fifth of the Articles of Association, as amended, of
the Association.
8. Restriction on Transfer. No shares of Non-Cumulative
Preferred Stock, or any interest therein, may be sold, pledged, transferred or
otherwise disposed of without the prior written consent of the Association.
The foregoing restriction shall be stated on any certificate for any shares of
Non-Cumulative Preferred Stock.
9. Additional Rights. The shares of Non-Cumulative Preferred
Stock shall not have any relative, participating, optional or other special
rights and powers other than as set forth herein.
SIXTH. The Board of Directors shall appoint one of its
members President of this Association, who shall be Chairperson of the Board,
unless the Board appoints another director to be the Chairperson. The Board of
Directors shall have the power to appoint one or more Vice Chairmen and Vice
Presidents and such other officers and employees as may be required to transact
the business of this Association.
The Board of Directors shall have the power to define the
duties of the officers and employees of the Association; to fix the salaries to
be paid to them; to
6
<PAGE> 14
dismiss them; to require bonds from them and to fix the penalty thereof; to
regulate the manner in which any increase of the capital of the Association
shall be made; to manage and administer the business and affairs of the
Association; to make all By-laws that it may be lawful for them to make; and
generally to do and perform all acts that it may be legal for a Board of
Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to
change the location of the main office to any other place permitted by law, but
subject to the approval of the Comptroller of the Currency; and shall have the
power to establish or change the location of any branch or branches of the
Association to any other location, without the approval of the shareholders,
but subject to the approval of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall
continue until terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any one
or more shareholders owning, in the aggregate, not less than 25 percent of the
stock of this Association, may call a special meeting of shareholders at any
time. Unless otherwise provided by the laws of the United States, a notice of
the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least ten days prior to the date of such meeting, to each shareholder of record
at his address as shown upon the books of this Association.
TENTH. (A) Indemnification of Directors.
The Association shall, to the fullest extent permitted by
applicable banking, corporate and other law and regulation, indemnify any
person who is or was a director of the Association from and against any and all
expenses, liabilities or other losses arising in connection with any action,
suit, appeal or other proceeding, by reason of the fact that such person is or
was serving as a director of the Association and may, to the fullest extent
permitted by applicable banking, corporate and other law and regulation,
advance monies to such persons for expenses incurred in defending any such
action, suit, appeal or other proceeding on such terms as the Association's
Board of Directors shall determine and as are required by applicable banking,
corporate and other law or regulation or interpretation by the applicable
banking regulators. The Association may purchase insurance for the purpose of
indemnifying such persons and/or reimbursing the Association upon payment of
indemnification to such persons to the extent that indemnification is
authorized by the preceding sentences, except that insurance coverage and
corporate indemnification shall not be available in connection with a formal
order by a court or judicial or governmental body assessing civil money
penalties against such person or in the event that such coverage or
indemnification would be prohibited by applicable banking, corporate and other
law or regulation.
7
<PAGE> 15
(B) Indemnification of Officers, Employees and Agents.
The Association shall indemnify any person who is or was an
officer, employee or agent of the Association or who is or was a director,
general partner, trustee or principal of another entity serving as such at the
request of the Association from and against any and all expenses, liabilities
or other losses arising in connection with any action, suit, appeal or other
proceeding, by reason of the fact that such person is or was serving as an
officer, employee or agent of the Association or as a director of another
entity at the request of the Association, to the extent authorized by the
corporate policy of the Association, as adopted and modified from time to time
by the shareholders of the Association, except to the extent that such
indemnification would be prohibited by applicable banking, corporate and other
law or regulation. The Association may advance monies to such persons for
expenses incurred in defending any such action, suit, appeal or other
proceeding in accordance with the corporate policy of the Association, as
adopted and modified from time to time by the shareholders of the Association,
under such terms and procedures as are required by applicable banking,
corporate and other law or regulation or interpretation by the applicable
banking regulators, except to the extent that such advancement would be
prohibited by applicable banking, corporate and other law or regulation. The
Association may purchase insurance for the purpose of indemnifying such persons
and/or reimbursing the Association upon payment of indemnification to such
person to the extent that indemnification is authorized by the preceding
sentence, except that insurance coverage and corporate indemnification shall
not be available in connection with a formal order by a court or judicial or
governmental body assessing civil money penalties against such person or in the
event that such coverage or indemnification would be prohibited by applicable
banking, corporate and other law or regulation.
ELEVENTH. These Articles of Association may be amended at any
regular or special meeting of the shareholders by the affirmative vote of the
holders of a majority of the stock of this Association, unless the vote of the
holders of a greater amount of stock is required by law, and in that case by
the vote of the holders of such greater amount.
8
<PAGE> 16
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
BYLAWS
ADOPTED: JANUARY 10, 1994
------------------------------
ARTICLE I
Meetings of Shareholders
Section 1.1. Annual Meeting. The regular annual meeting of the
shareholders for the election of directors and transaction of whatever other
business may properly come before the meeting, shall be held at the Main Office
of the Association, or such other place as the Board of Directors may
designate, at 10:00 A.M., on the second Thursday of May of each year or such
other time within 90 days as may be set by the Board of Directors. If, from
any cause, an election of directors is not made on the said day, the Board of
Directors shall order the election to be held on some subsequent day, as soon
thereafter as practicable, according to the provisions of the law; and notice
thereof shall be given in the manner herein provided for the annual meeting.
Section 1.2. Special Meetings. Except as otherwise specifically
provided by statute, special meetings of the shareholders may be called for any
purpose at any time by the Board of Directors or by any one or more
shareholders owning, in the aggregate, not less than twenty-five percent of the
stock of the Association.
Section 1.3. Notice of Meetings. Notice of Annual and Special
meetings shall be mailed, postage prepaid, at least ten
<PAGE> 17
days prior to the date thereof, addressed to each shareholder at his address
appearing on the books of the Association; but any failure to mail such notice,
or any irregularity therein, shall not affect the validity of such meeting, or
of any of the proceedings thereat. A shareholder may waive any such notice.
Section 1.4. Organization of Meetings. The Chairman shall preside at
all meetings of shareholders. In his absence, the President, or a director
designated by the Chairman shall preside at such meeting.
Section 1.5. Proxies. Shareholders may vote at any meeting of the
shareholders by proxies duly authorized in writing. Proxies shall be valid
only for one meeting to be specified therein, and any adjournments of such
meeting. Proxies shall be dated and shall be filed with the records of the
meeting.
Section 1.6. Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any
meeting, unless otherwise provided by law or by the Articles of Association.
ARTICLE II
Directors
Section 2.1. Board of Directors. The Board of Directors (hereinafter
referred to as the "Board"), shall have power to
-2-
<PAGE> 18
manage and administer the business and affairs of the Association. Except as
expressly limited by law, all corporate powers of the Association shall be
vested in and may be exercised by said Board.
Section 2.2. Number. The Board shall consist of not less than five
nor more than twenty-five shareholders, the exact number within such minimum
and maximum limits to be fixed and determined from time to time by resolution
of a majority of the full Board or by resolution of the shareholders at any
meeting thereof; provided, however, that a majority of the full Board may not
increase the number of directors to a number which: (a) exceeds by more than
two the number of directors last elected by shareholders where such number was
fifteen or less; and (b) to a number which exceeds by more than four the number
of directors last elected by shareholders where such number was sixteen or
more, but in no event shall the number of directors exceed twenty-five.
Section 2.3. Organization Meeting. A meeting shall be held for the
purpose of organizing the new Board and electing and appointing officers of the
Association for the succeeding year on the day of the Annual Meeting of
Shareholders or as soon thereafter as practicable, and, in any event, within
thirty days thereof. If, at the time fixed for such meeting, there shall not
be a quorum present, the directors present may adjourn the meeting, from time
to time, until a quorum is obtained.
Section 2.4. Regular Meetings. The regular meetings of the Board
shall be held on such days and time as the directors may, by resolution,
designate; and written notice of any change thereof
-3-
<PAGE> 19
shall be sent to each member. When any regular meeting of the Board falls
upon a legal holiday, the meeting shall be held on such other day as the
Board may designate.
Section 2.5. Special Meetings. Special meetings of the Board may be
called by the Chairman of the Board, or President, or at the request of three
or more directors. Each director shall be given notice of each special
meeting, except the organization meeting, at least one day before it is to be
held by facsimile, telegram, letter or in person. Any director may waive any
such notice.
Section 2.6. Quorum. A majority of the directors shall constitute a
quorum at any meeting, except when otherwise provided by law; but a less number
may adjourn any meeting, from time to time, and the meeting may be held, as
adjourned without further notice.
Section 2.7. Term of Office and Vacancy. Directors shall hold office
for one year and until their successors are elected and have qualified. No
person shall stand for election as a director of this Association if at the
date of his election he will have passed his seventieth birthday; provided,
however, this prohibition shall not apply to persons who are active officers of
this Association, an affiliate bank, or its parent corporation, or a former
chief executive officer of the Association. No person, who is not an officer
or former officer of this Association, an affiliate bank, or its parent
corporation and who has discontinued the principal position or activity the
person held when initially elected, shall be recommended to the shareholders
for reelection;
-4-
<PAGE> 20
provided, however, that exceptions may be made because of a change in principal
position or activity which would be compatible with continued service to this
Association. No person elected as a director may exercise any of the powers of
his office until he has taken the oath of office as prescribed by law. When
any vacancy occurs among the directors, the remaining members of the Board, in
accordance with the laws of the United States, may appoint a director to fill
such vacancy at any regular meeting of the Board, or at a special meeting called
for that purpose.
Section 2.8. Nominations. Nominations for election to the Board may
be made by the Executive Committee or by any stockholder of any outstanding
class of capital stock of the Association entitled to vote for the election of
directors.
Section 2.9. Communications Equipment. Any or all directors may
participate in a meeting of the Board by means of conference telephone or any
means of communication by which all persons participating in the meeting are
able to hear each other.
Section 2.10. Action Without Meeting. Any action required or
permitted to be taken by the Board or committee thereof by law, the
Association's Articles of Association, or these Bylaws may be taken without a
meeting, if, prior or subsequent to the action, all members of the Board or
committee shall individually or collectively consent in writing to the action.
Each written consent or consents shall be filed with the minutes of the
proceedings of the Board or committee. Action by written consent shall have
the same force and effect as a unanimous vote of the
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<PAGE> 21
directors, for all purposes. Any certificate or other documents which relates
to action so taken shall state that the action was taken by unanimous written
consent of the Board or committee without a meeting.
ARTICLE III
Committees of the Board
Section 3.1. Executive Committee. The Board may by resolution
adopted by a majority of the entire Board designate an Executive Committee
consisting of the Chairman of the Board, the President, and not less than two
other directors. Subject to the national banking laws and the Association's
Articles of Association, the Executive Committee may exercise all the powers of
the Board of Directors with respect to the affairs of the Association, except
that the Executive Committee may not:
1. (a) exercise such powers while a quorum of the Board of
Directors is actually convened for the conduct of
business,
(b) exercise any power specifically required to be
exercised by at least a majority of all the directors,
(c) act on matters committed by the Bylaws or resolution
of the Board of Directors to another committee of the
board, or
(d) amend or repeal any resolution theretofore adopted
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<PAGE> 22
by the Board of Directors which by its terms is
amendable or repealable only by the Board;
2. amend the Articles of Association or make, alter or repeal any
Bylaw of the Association;
3. elect or appoint any director, create or fill any vacancies in
the Board of Directors or remove any director, or authorize or
approve any change in the compensation of any officer of the
Association who is also a director of the Association;
4. authorize or approve issuance or sale or contract for sale of
shares of stock of the Association, or determine the
designation and relative rights, preferences and limitations
of a class or series of shares;
5. adopt an agreement of merger or consolidation, or submit to
shareholders any action that requires shareholder approval,
including any recommendation to the shareholders concerning
the sale, lease or exchange of all or substantially all the
Association's property and assets, a dissolution of the
Association or a revocation of a previously approved
dissolution; or
6. authorize an expenditure by the Association in excess of $10
million for any one item or group of related items.
The committee shall hold regular meetings at such times as the members shall
agree and whenever called by the chairman of the committee. A majority of the
committee shall constitute a quorum for the transaction of business. The
committee shall keep a record
-7-
<PAGE> 23
of its proceedings and shall report these proceedings to the Board at the
regular meetings thereof. The committee shall serve as the nominating committee
for nominations to the Board. The committee shall provide oversight on all
Community Reinvestment Act ("CRA") matters pertaining to the Association.
The committee shall also be responsible for monitoring the CRA activities of
the Association on an on-going basis and making periodic reports on such CRA
activity to the Board.
Section 3.2. Chairman of the Executive Committee. The Board may
designate one of its members to be Chairman of the Executive Committee who
shall preside at the meetings thereof and shall perform such duties as the
Board shall assign to him from time to time.
Section 3.3. Audit Committee. The Board shall appoint a committee of
three or more persons exclusive of the officers of this Association which
committee shall be known as the Audit Committee. It shall be the duty of this
committee at least once in every twelve months to examine the affairs of the
Association, and determine whether it is in a sound and solvent condition and
to recommend to the Board such changes in the manner of doing business, etc.,
as may seem to be desirable. The committee may cause such examination to be
made in its behalf and under its supervision by outside accountants and may
also use the services of any other persons either inside or outside the
Association to assist in its work. The results of each examination shall be
reported in writing to the Board.
-8-
<PAGE> 24
Section 3.4. Audit of Trust Department. The Audit Committee shall,
at least once during each calendar year and within fifteen months of the last
such audit make suitable audits of the Trust Department or cause suitable
audits to be made by auditors responsible only to the Board, and at such time
shall ascertain whether the department has been administered in accordance with
law, Part 9 of the Regulations of the Comptroller of the Currency, and sound
fiduciary principles. In lieu of such periodic audit the Audit Committee, at
the election of the Board, may conduct or cause to be conducted by auditors
responsible only to the Board an adequate continuous audit system adopted by
the Board. A written report of such periodic or continuous audit shall be made
to the Board.
Section 3.5. Other Committees. The Board may appoint from time to
time other committees composed of one or more persons each, for such purposes
and with such powers as the Board may determine. The Chairman of the Board
shall have the power to designate another person to serve on any committee
during the absence or inability of any member thereof so to serve.
Section 3.6. Directors' Emeritus. The Board may designate one or
more persons to serve as Director Emeritus. Such Director Emeritus shall have
the right to attend any and all meetings of the Board, but shall have no vote
at such meetings. A person designated as Director Emeritus may serve in that
capacity for a period of three years.
-9-
<PAGE> 25
Section 3.7. Alternate Committee Members. The Board may, from time
to time, appoint one or more, but no more than three persons to serve as
alternate members of a committee, each of whom shall be empowered to serve on
that committee in place of a regular committee member in the event of the
absence or disability of that committee member. An alternate committee member
shall, when serving on a committee, have all of the powers of a regular
committee member. Alternate committee members shall be notified of, and
requested to serve at, a particular meeting or meetings, or for particular
periods of time, by or at the direction of the chairman of the committee or the
Chairman of the Board.
ARTICLE IV
Officers
Section 4.1a. Appointment. The senior officers of this Association
shall be chosen by the Board and shall be the Chairman of the Board, one or
more Vice Chairmen, the President, and the Chief Financial Officer and such
other officers as in the judgment of the Board may be from time to time
required. The Chairman of the Board and the President shall be chosen from the
Directors. The Board may designate a person to serve as secretary of all
meetings of the Board and of the shareholders and the persons so designated
shall keep accurate minutes of such meetings.
-10-
<PAGE> 26
Section 4.1b. Other Officers. The Board may by resolution authorize
the President to appoint other officers with such titles and duties as he may
designate.
4.2. Term of Office. The officers who are required by the articles
of association or the bylaws to be members of the Board shall hold their
respective offices until the Organization meeting of the Board following the
annual meeting of shareholders or until their respective successors shall have
been elected, unless they shall resign, become disqualified or be removed from
office. Each other officer shall hold office at the pleasure of the Board.
Any officer may be removed at any time by the Board.
Section 4.3. Chairman of the Board. The chairman of the board shall
be designated as Chairman of the Board. He shall preside at all meetings of
the stockholders and directors and he shall be a member of all committees of
the Board except the Examining Committee. He shall have such other powers and
perform such other duties as may be prescribed from time to time by the Board.
He shall be subject only to the direction and control of the Board.
Section 4.4. President. The president shall be the chief executive
officer of the Association and he shall be designated as President and Chief
Executive Officer. In the absence of the Chairman the President shall preside
at all meetings of the Board. The President shall be a member of each
committee of the Board except the Examining Committee. He shall have the
powers and
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<PAGE> 27
perform the duties conferred or imposed upon the President by the national
banking laws, and he shall have such other powers and perform such other duties
as may from time to time be imposed upon or assigned to him by the Board.
Section 4.5. Chief Financial Officer. The Chief Financial Officer
shall have such title as may be designated by the Board and he shall be
responsible for all monies, funds and valuables of this Association, provide
for the keeping of proper records of all transactions of the Association,
report to the Board at each regular meeting the condition of the Association,
submit to the Board, when requested, a detailed statement of the income and
expenses, be responsible for the conduct and efficiency of all persons employed
under him, and perform such other duties as may be from time to time assigned
to him by the Board.
Section 4.6. Other Officers. All other officers shall respectively
exercise such powers and perform such duties as generally pertain to their
several offices, or as may be conferred upon or assigned to them by the Board,
the Chairman of the Board or the President.
Section 4.7. Bond. Each officer and employee, if so required by the
Board, shall give bond with surety to be approved by the Board, conditioning
for the honest discharge of his duties as such officer or employee. In the
discretion of the Board, such bonds may be individual, schedule or blanket
form, and the premiums may be paid by the Association.
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<PAGE> 28
ARTICLE V
Trust Department
Section 5.1. Trust Department. There shall be a department of the
Association known as the Trust Department which shall perform the fiduciary
responsibilities of the Association.
Section 5.2. Trust Officer. There shall be a Trust Officer of this
Association whose duties shall be to manage, supervise and direct all the
activities of the Trust Department. Such persons shall do or cause to be done
all things necessary or proper in carrying on the business of the Trust
Department in accordance with the provisions of law and applicable regulations;
and shall act pursuant to opinion of counsel where such opinion is deemed
necessary. Opinions of counsel shall be retained on file in connection with
all important matters pertaining to fiduciary activities. The Trust Officer
shall be responsible for all assets and documents held by the Association in
connection with fiduciary matters. The Trust Officer shall perform such other
duties and possess such other powers as from time to time shall be delegated to
him by the Chief Executive Officer, the Board, the Executive Committee or these
bylaws. The President may appoint such other officers of the Trust Department
as it may deem necessary or advisable with such duties as may be assigned and
with such titles as may be designated.
Section 5.3. Trust Investment. Funds held in a fiduciary capacity
shall be invested in accordance with the instrument
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<PAGE> 29
establishing the fiduciary relationship and local law. Where such instrument
does not specify the character and class of the investments to be made and does
not vest in the Association a discretion in the matter, funds held pursuant to
such instrument shall be invested in investments in which corporate fiduciaries
may invest under local law.
ARTICLE VI
Stock Certificates and Transfers
Section 6.1. Stock Certificates. Ownership of capital stock of the
Association shall be evidenced by certificates of stock signed by the Chairman
or President, and the Secretary, or an Assistant Secretary. Each certificate
shall state upon its face that the stock is transferable only upon the books of
the Association by the holder thereof, or by duly authorized attorney, upon the
surrender of such certificate, and shall meet the requirements of Section 5139,
United States Revised Statutes, as amended.
Section 6.2. Transfers. The stock of this Association shall be
assignable and transferable only on the books of this Association, subject to
the restrictions and provisions of the national banking laws; and a transfer
book shall be provided in which all assignments and transfers of stock shall be
made. When stock is transferred, the certificates thereof shall be returned to
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<PAGE> 30
the Association, canceled, preserved and new certificates issued.
Section 6.3. Dividends. Dividends shall be paid to the shareholders
in whose names the stock shall stand at the close of business on the day next
preceding the date when the dividends are payable, provided, however, that the
directors may fix another date as a record date for the determination of the
shareholders entitled to receive payment thereof.
ARTICLE VII
Increase of Stock
7.1. Capital Stock. Shares of the capital stock of the Association,
which have been authorized but not issued, may be issued from time to time for
such consideration, not less than the par value thereof, as may be determined
by the Board.
ARTICLE VIII
Corporate Seal
Section 8.1. Seal. The seal, an impression of which appears below,
is the seal of the Association as adopted by the Board of Directors:
[Seal]
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<PAGE> 31
The Chairman of the Board, the Vice Chairman, the President, Senior
Executive Vice President, Executive Vice President, Senior Vice President, Vice
President, each Assistant Vice President, the Chief Financial Officer, the
Secretary, each Assistant Secretary, each Trust Officer, each Assistant Trust
Officer or each Assistant Cashier, shall have the authority to affix the
corporate seal of this Association and to attest to the same.
ARTICLE IX
Miscellaneous Provisions
Section 9.1. Fiscal Year. The fiscal year of the Association shall
be the calendar year.
Section 9.2. Execution of Instruments. All agreements, contracts,
indentures, mortgages, deeds, conveyances, transfers, certificates,
declarations, receipts, discharges, releases, satisfactions, settlements,
petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and
other instruments or documents may be signed, executed, acknowledged, verified,
delivered or accepted in behalf of the Association by the Chairman of the
Board, or any Vice Chairman, or the President, or Senior Executive Vice
President, or Executive Vice President, or Senior Vice President, or Vice
President, or Assistant Vice President, or Chief Financial Officer, or the
Secretary, or Assistant Secretary, or, if in connection with the exercise of
fiduciary powers of the Association, by any of said officers or by any Trust
Officer or
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<PAGE> 32
Assistant Trust Officer, to the extent authorized by the corporate policy of
the Association, as adopted and modified from time to time. Any such
instruments may also be executed, acknowledged, verified, delivered, or
accepted in behalf of the Association in such other manner and by such other
officers as the Board may from time to time direct.
Section 9.3. Records. The organization papers of this Association,
the articles of association, the bylaws and any amendments thereto, the
proceedings of all regular and special meetings of the shareholders and of the
directors, the returns of the judges of elections, and the reports of the
committees of directors shall be recorded in an appropriate minute book, and
the minutes of each meeting shall be signed by the Secretary or any other
officer appointed to act as secretary of the meeting.
Section 9.4. Banking Hours. This Association and its branch offices
shall be open on such days and during such hours as shall be fixed from time to
time by the Board.
Section 9.5. Voting Shares of Other Corporations. The Chairman, the
Vice Chairman, President, or any Vice President are authorized to vote,
represent and exercise on behalf of this Association all rights incident to any
and all shares of stock of any other corporation standing in the name of the
Association. The authority granted herein may be exercised by such officers in
person or by proxy or by power of attorney duly executed by said officer.
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<PAGE> 33
ARTICLE X
Bylaws
Section 10.1. Inspection. A copy of the Bylaws, with all amendments
thereto, shall at all times be kept in a convenient place at the Head Office of
the Association, and shall be open for inspection to all shareholders, during
banking hours.
Section 10.2. Amendments. These Bylaws may be changed or amended at
any regular or special meeting of the Board by the vote of a majority of the
Directors.
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<PAGE> 34
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, and in connection with the proposed issue of Air Products and
Chemical, Inc. we hereby consent that reports of examinations by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon request therefor.
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
By: /s/ JOHN H. CLAPHAM
--------------------------------
John H. Clapham
Assistant Vice President
Elkton, Maryland
January 12, 1995
<PAGE> 35
EXHIBIT T-7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the First Fidelity Bank,
National Association of Salem in the state of New Jersey, at the close of
business on September 30, 1994, published in response to call made by
Comptroller of the Currency, under title 12, United States Code, Section 161.
Charter Number 33869 Comptroller of the Currency Northeastern District.
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS
<TABLE>
<CAPTION>
Thousand of Dollars
-------------------
<S> <C>
Cash and balance due from depository institutions:
Noninterest-bearing balances and currency and coin............. 1,346,661
Interest-bearing balances...................................... 411,672
Securities....................................................... /////////
Hold-to-maturity securities.................................... 3,235,557
Available-for-sale securities.................................. 3,287,987
Federal funds sold and securities purchased under agreements //////////
to resell in domestic offices of the bank and of it //////////
Edge and Agreement subsidiaries, and in IBFs: //////////
Federal funds sold...................................... 12,494
Securities purchased under agreements to resell......... 325,542
Loans and lease financing receivables:
Loan and leases, net of unearned income.......18,895,117
LESS: Allowance for loan and lease losses........502,752
LESS: Allocated transfer risk reserve..................0
Loans and leases, net of unearned income, allowance, and
reserve................................................. 18,392,365
Assets held in trading accounts.................................. 111,334
Premises and fixed assets (including capitalized leases)......... 338,489
Other real estate owned.......................................... 125,867
Investment in unconsolidated subsidiaries and associated //////////
companies........................................................ 12,646
Customer's liability to this bank on acceptances outstanding..... 202,327
Intangible assets................................................ 284,003
Other assets..................................................... 733,174
Total assets..................................................... 28,820,118
LIABILITIES
Deposits:
In domestic offices..................................... 21,926,652
Noninterest-bearing..........................4,373,924
Interest-bearing............................17,552,728
In foreign offices, Edge and Agreement subsidiaries,
and IBFs................................................ 1,434,456
Noninterest-bearing.............................12,570
Interest-bearing.............................1,421,886
Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and IBFs
Federal fund purchased.................................. 662,248
Securities sold under agreements to repurchase.......... 1,259,079
Demand notes issued to the U.S. Treasury......................... 0
Trading liabilities.............................................. 0
Other borrowed money:............................................ /////////
With original maturity of one year or less.............. 176,938
With original maturity of more than one year............ 740
Mortgage indebtedness and obligations under capitalized leases 6,963
Bank's liability on acceptances executed and outstanding......... 205,111
Subordinated notes and debentures................................ 175,000
Other liabilities................................................ 452,172
Total liabilities................................................ 26,299,359
Limited-life preferred stock and related surplus................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus.................... 0
Common Stock..................................................... 430,000
Surplus.......................................................... 985,034
Undivided profits and capital reserves........................... 1,144,089
Net unrealized holding gains (losses) on available-for-sale /////////
securities...................................................... (38,364)
Cumulative foreign currency translation adjustments.............. 0
Total equity capital............................................. 2,520,759
Total liabilities, limited-life preferred stock and equity....... //////////
capital........................................................ 28,820,118
</TABLE>
