AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 18, 1995
REGISTRATION NO.
33-
POST-EFFECTIVE
AMENDMENT NO. 1 TO
REGISTRATION NO.
33-45324
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
FORM S-3
REGISTRATION STATEMENT
AND
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------
AMERICAN HOME PRODUCTS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2526821
(STATE OR OTHER JURISDICTION OF (I.R.S.EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
-------------------
FIVE GIRALDA FARMS, MADISON, NEW JERSEY 07940 (201) 660-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------
LOUIS L. HOYNES, JR.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
AMERICAN HOME PRODUCTS CORPORATION
FIVE GIRALDA FARMS
MADISON, NEW JERSEY 07940
(201) 660-5000
(NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
AGENT FOR SERVICE)
-------------------
COPIES TO:
GERALD A. JIBILIAN PETER H. JAKES
JEFFREY S. SHERMAN WILLKIE FARR & GALLAGHER
AMERICAN HOME PRODUCTS CORPORATION ONE CITICORP CENTER
FIVE GIRALDA FARMS 153 EAST 53RD STREET
MADISON, NEW JERSEY 07940 NEW YORK, NEW YORK 10022
(201) 660-5000 (212) 821-8000
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement as determined in
light of market conditions.
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, check the following box. X
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE><CAPTION>
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS TO BE OFFERING PRICE AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT(2)(3) OFFERING PRICE FEE(4)
<S> <C> <C> <C> <C>
Debt Securities.................. $3,250,000,000 100% $3,250,000,000 $1,120,689.66
</TABLE>
(1) If any Debt Securities are issued (i) at an original discount, such greater
principal amount as shall result in an aggregate offering price equal to
$3,250,000,000 or (ii) with a principal amount denominated in a foreign or
composite currency, such principal amount as shall result in an aggregate
offering price equivalent to $3,250,000,000 at the time of the offering.
(2) Estimated solely for the purpose of computing the registration fee.
(3) Excluding accrued interest and accrued amortization of discount, if any.
(4) The registration fee has been calculated in accordance with rule 457(m)
under the Securities Act of 1933.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus
included in this Registration Statement is a combined prospectus and relates to
Registration Statement No. 33-45324 previously filed by the Registrant on Form
S-3 and declared effective on February 27, 1992 as to which this Registration
Statement constitutes Post Effective Amendment No. 1 and pursuant to which
$250,000,000 of Debt Securities remain to be issued. Such Post-Effective
Amendment shall hereafter become effective concurrently with the effectiveness
of this registration statement in accordance with Section 8(c) of 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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
PROSPECTUS (SUBJECT TO COMPLETION)
JANUARY 18, 1995
$3,500,000,000
AMERICAN HOME PRODUCTS CORPORATION
]DEBT SECURITIES
American Home Products Corporation (the "Company") may offer and issue from
time to time in one or more series debt securities (the "Debt Securities") with
an initial offering price not to exceed $3,500,000,000 (or the equivalent in
foreign denominated currency or currency units based on or relating to foreign
currencies, including European Currency Units). The Company will offer Debt
Securities to the public on terms determined by market conditions. Debt
Securities may be issuable in registered form without coupons or in bearer form
with or without coupons attached. Debt Securities may be sold for U.S. dollars,
foreign denominated currency or currency units; principal of and any interest on
Debt Securities may likewise be payable in U.S. dollars, foreign denominated
currency or currency units--in each case, as the Company specifically
designates.
The accompanying Prospectus Supplement sets forth the specific designation,
aggregate principal amount, purchase price, maturity, interest rate (or manner
of calculation thereof), time of payment of interest (if any), listing (if any)
on a securities exchange and any other specific terms of the Debt Securities and
the name of and compensation to each dealer, underwriter or agent (if any)
involved in the sale of the Offered Debt Securities (as defined herein). The
managing underwriters with respect to each series sold to or through
underwriters will be named in the accompanying Prospectus Supplement.
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.
Debt Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the accompanying Prospectus
Supplement. Net proceeds to the Company will be the purchase price in the case
of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an agent--in
each case, less other expenses attributable to issuance and distribution. The
Company may also sell Debt Securities directly to investors on its own behalf.
In the case of sales made directly by the Company, no commission will be
payable. See "Plan of Distribution" for possible indemnification arrangements
for dealers, underwriters and agents.
-------------------
The date of this Prospectus is January , 1995
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 STATE.
<PAGE>
-------------------
IN CONNECTION WITH THIS OFFERING OF CERTAIN DEBT SECURITIES, THE
UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICES OF SUCH DEBT SECURITIES OR OTHER SECURITIES OF THE COMPANY AT
LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
-------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company with the Commission can be inspected and copied at the
public reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549 or at its Regional Offices located at 500
West Madison Street, Suite 1400, Chicago, Illinois 60661 and 7 World Trade
Center, Suite 1300, New York, New York 10048, and copies of such material can be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. Such material can
also be inspected at the office of The New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, on which certain of the Company's securities
are listed.
The Prospectus constitutes a part of a Registration Statement on Form S-3
(referred to herein, including all amendments and exhibits, as the "Registration
Statement") which the Company has filed with the Commission under the Securities
Act of 1933, as amended (the "Securities Act"). This Prospectus does not contain
all of the information contained in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. Reference is hereby made to the Registration Statement and related
exhibits for further information with respect to the Company and the Securities.
The Registration Statement may be inspected at the public reference facilities
maintained by the Commission at the addresses set forth in the proceeding
paragraph. Statements contained herein concerning the provisions of any document
filed as an Exhibit to the Registration Statement are not necessarily complete
and, in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
-------------------
2
<PAGE>
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission
and are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the year ended December
31, 1993;
(2) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30, and September 30, 1994; and
(3) the Company's Current Reports on Form 8-K dated August 4, 1994,
August 17, 1994 and December 6, 1994, respectively.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of any series of Debt Securities shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof from
the date of filing of such documents.
Any statement contained herein or 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 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.
Copies of the above documents (excluding exhibits) may be obtained upon
request by persons to whom this Prospectus is delivered without charge from the
Secretary of the Company, Five Giralda Farms, Madison, New Jersey 07940
(telephone number 201-660-5000).
3
<PAGE>
THE COMPANY
American Home Products Corporation (the "Company") is engaged in the
discovery, development, manufacture, distribution and sale of a diversified line
of products in three business segments: health care products, agricultural
products and food products. In late 1994, the Company acquired American Cyanamid
Company ("Cyanamid"), a diversified health care and agricultural products
company.
The Company's health care products operations are conducted primarily
through the following divisions and subsidiaries: Wyeth-Ayerst is a worldwide
discoverer, developer, manufacturer and marketer of ethical pharmaceuticals,
with major products in such categories as female health care, cardiovascular
products, infant formulas, injectable products, anti-inflammatory agents,
psychotropic products, and prescription cough/cold/allergy products. Lederle
Laboratories is a worldwide manufacturer and marketer of branded and generic
ethical pharmaceuticals, biologicals and consumer health care products, with
major products in such categories as anti-infectives, anticancer agents,
cardiovascular products, vaccines and vitamins. Whitehall-Robins is a developer,
manufacturer and/or marketer of ethical pharmaceuticals, over-the-counter
medications, personal care products and other brand name consumer products in
the U.S. and internationally. Sherwood Medical Company develops, manufactures
and markets medical devices and clinical laboratory products worldwide. In
addition, the Company, through its Storz Ophthalmics, Acufex Microsurgical,
Davis & Geck, Quinton Instrument and Symbiosis subsidiaries, also develops,
manufactures and markets medical devices worldwide. Fort Dodge Laboratories,
along with Cyanamid's animal health business, discovers, develops, manufactures
and markets animal biologicals, pharmaceuticals and feed additives in the U.S.
and internationally. The Company holds majority interests in Genetics Institute,
Inc., and Immunex Corporation, each a significant biopharmaceutical company.
The Company's agricultural products business is concentrated in the crop
protection and vegetation and pest control areas and encompasses herbicides,
including imidazolinone herbicides, insecticides, fungicides and plant growth
regulators.
The Company's food products operations are conducted through its American
Home Food Products subsidiary which manufactures and markets entrees, side
dishes, spreadable fruit products, snacks and other food products in the U.S.
and Canada.
The Company was incorporated in the State of Delaware in 1926 and maintains
its principal offices at Five Giralda Farms, Madison, New Jersey 07940
(telephone number 201-660-5000).
RECENT DEVELOPMENTS
- --ACQUISITION OF AMERICAN CYANAMID COMPANY
In late 1994, the Company acquired all of the outstanding common stock of
Cyanamid pursuant to a tender offer (the "Offer") and subsequent merger of a
subsidiary of the Company with Cyanamid (the "Merger", and together with the
Offer, the "Acquisition").
In connection with the Acquisition, the Company and certain of its
subsidiaries entered into two credit agreements with a syndicate of lenders led
by Chemical Bank, as administrative agent, whereby the lenders agreed to lend
the Company and certain of its subsidiaries an aggregate of up to $10.0 billion
(the "Credit Facilities"). The Credit Facilities consist of a $7.0 billion,
364-day facility which is renewable, with the consent of the majority lenders,
for up to four additional 364-day periods and a $3.0 billion, five-year
facility. The proceeds of the Credit Facilities may be used by the borrowers (i)
as a back-up for privately placed short-term notes, and (ii) for the Company's
general corporate and working capital purposes. The Credit Facilities contain
various customary covenants, representations, warranties, conditions and default
provisions and a financial covenant under which the Company's ratio of adjusted
indebtedness to adjusted capitalization may not exceed .76:1 through (but
excluding) December 31, 1996, which maximum allowable ratio declines to .65:1 by
December 31, 1998.
4
<PAGE>
The aggregate purchase price to acquire all of the Cyanamid shares at $101
per share pursuant to the Acquisition and to pay related fees and expenses was
approximately $9.6 billion. The Acquisition was initially financed through the
sale by the Company and certain of its subsidiaries of privately placed
short-term notes supported by the Credit Facilities ("the Notes"), and with the
Company's general corporate funds. In connection with financing the Acquisition,
in October 1994 the Company entered into $4.75 billion notional amount of
simple, unleveraged, intermediate tenor interest rate swaps, the effect of which
is to convert floating rate obligations to fixed rate obligations.
While the Notes are due within one year, the Company intends to classify
such notes as long-term debt in its financial statements because it intends, and
has the ability, to refinance these obligations for a period greater than
one-year from the date of its financial statements through (i) the issuance of
the Debt Securities, (ii) by the issuance of additional privately placed
short-term notes; or (iii) the use of the Credit Facilities.
- --SALE OF ORAL HEALTH BUSINESS
On January 10, 1995, the Company completed the sale of its South American
oral health business to Colgate-Palmolive Company for an aggregate purchase
price of $1.04 billion. Also included in the sale were the Company's oral health
businesses in Hungary, Greece and Taiwan. The South American oral health
business had sales of approximately $290 million in 1994. Its products include
toothpastes, toothbrushes, dental floss and mouth rinse, sold primarily under
the Kolynos trademark with the largest market being Brazil and other significant
markets in Argentina, Colombia, Peru and Uruguay. The proceeds are being used
primarily to repay a portion of the Notes.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE><CAPTION>
NINE MONTHS
ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, ------------------------------------
1994 1993 1992 1991 1990 1989
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges................. 22 23 28 36 13 24
</TABLE>
For the purposes of computing these ratios, "earnings" consist of income
before income taxes and accounting changes, minority interests in earnings or
losses of consolidated subsidiaries and fixed charges. Fixed charges for the
purpose of calculating the ratios of earnings to fixed charges consist
principally of interest expense, and that portion of rentals representative of
an interest factor.
On a pro forma basis, after giving effect to the Acquisition and Acquisition
related matters and assuming the Acquisition had taken place on January 1, 1993,
the ratio of earnings to fixed charges would have been 2.9 for the nine months
ended September 30, 1994 and, excluding the impact of certain one-time charges
in the historical financial statements of Cyanamid (the write-off of acquired
in-process research of Immunex Corporation, a majority owned subsidiary, and a
Cyanamid restructuring charge incurred in 1993--see Note 3 to Cyanamid's 1993
financial statements), 2.7 for the year ended December 31, 1993. Including these
charges, the pro forma ratio of earnings to fixed charges would be 2.1 for the
year ended December 31, 1993.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities for
repayment of indebtedness, including certain of the Notes issued in connection
with the Acquisition.
5
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture dated as of April 10,
1992, as amended on October 13, 1992 (the "Indenture") between the Company and
Chemical Bank (successor to Manufacturers Hanover Trust Company) as trustee (the
"Trustee"), a copy of which is incorporated by reference as an exhibit to the
Registration Statement of which this Prospectus is a part. The following
summaries of certain provisions of the Indenture and the Debt Securities do not
purport to be complete and such summaries are subject to the detailed provisions
of the Indenture to which reference is hereby made for a full description of
such provisions, including the definition of certain terms used herein, and for
other information regarding the Debt Securities. Numerical references in
parentheses below are to sections in the Indenture. Wherever particular sections
or defined terms of the Indenture are referred to, such sections or defined
terms are incorporated herein by reference as part of the statement made, and
the statement is qualified in its entirety by such reference. The Debt
Securities offered by this Prospectus and the accompanying Prospectus Supplement
are referred to herein as the "Offered Debt Securities."
GENERAL
The Debt Securities will be unsecured and unsubordinated and will rank Pari
Passu with all other unsecured and unsubordinated indebtedness of the Company.
The Indenture does not limit the aggregate principal amount of Debt Securities
which can be issued thereunder. The Indenture provides that Debt Securities may
be issued from time to time in one or more series and may be denominated and
payable in foreign currencies or units based on or relating to foreign
currencies, including European Currency Units ("ECUs"). Special United States
federal income tax considerations applicable to any Debt Securities so
denominated shall be described in the relevant Prospectus Supplement or Pricing
Supplement.
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Debt Securities): (i) the specific designation,
aggregate principal amount, purchase price and denomination; (ii) currency or
units based on or relating to currencies in which such Offered Debt Securities
are denominated and/or in which principal (and premium, if any) and/or any
interest will or may be payable; (iii) date or dates of maturity; (iv) interest
rate or rates (or the method by which such rate or rates will be determined), if
any; (v) the dates on which any such interest will be payable; (vi) the place or
places where the principal of, premium, if any, and interest, if any, on the
Offered Debt Securities will be payable; (vii) any redemption, repayment or
sinking fund provisions; (viii) whether the Offered Debt Securities will be
issuable in registered form or bearer form ("Bearer Debt Securities") or both
and, if Bearer Debt Securities are issuable, any restrictions applicable to the
exchange of one form for another and to the offer, sale and delivery of Bearer
Debt Securities; (ix) any applicable United States federal income tax
consequences, including whether and under what circumstances the Company will
pay additional amounts on Offered Debt Securities held by a person who is not a
U.S. person (as defined in the Prospectus Supplement) in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Offered Debt Securities rather than
pay such additional amounts; and (x) any other specific terms of the Offered
Debt Securities, including any additional events of default or covenants
provided for with respect to such Offered Debt Securities, and any terms which
may be required by or advisable under applicable laws or regulations.
Debt Securities may be presented for exchange and registered Debt Securities
may be presented for transfer in the manner, at the places and subject to the
restrictions set forth in the Debt Securities and the Prospectus Supplement.
Such services will be provided without charge, other than any tax or other
governmental charge payable in connection therewith, but subject to the
limitations provided in
6
<PAGE>
the Indenture. Debt Securities in bearer form and the coupons, if any,
pertaining thereto will be transferable by delivery.
Debt Securities will bear interest at a fixed rate or a floating rate. Debt
Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes are described in the
relevant Prospectus Supplement.
Debt Securities may be issued, from time to time, with the principal amount
payable on any principal payment date, or the amount of interest payable on any
interest payment date, to be determined by reference to one or more currency
exchange rates, commodity prices, equity indices or other factors. Holders of
such Debt Securities may receive a principal amount on any principal payment
date, or a payment of interest on any interest payment date, that is greater
than or less than the amount of principal or interest otherwise payable on such
dates, depending upon the value on such dates of the applicable currency,
commodity, equity index or other factor. Information as to the methods for
determining the amount of principal or interest payable on any date, the
currencies, commodities, equity indices or other factors to which the amount
payable on such date is linked and certain additional tax considerations will be
set forth in the applicable Prospectus Supplement or Pricing Supplement.
GLOBAL SECURITIES
The registered Debt Securities of a series may be issued in the form of one
or more fully registered global securities (a "Registered Global Security") that
will be deposited with a depositary (a "Depositary") or with a nominee for a
Depositary identified in the Prospectus Supplement relating to such series and
registered in the name of the Depositary or a nominee thereof. In such case, one
or more Registered Global Securities will be issued in a denomination or
aggregate denominations equal to the portion of the aggregate principal amount
of outstanding registered Debt Securities of the series to be represented by
such Registered Global Security or Securities. Unless and until it is exchanged
in whole for Debt Securities in definitive registered form, a Registered Global
Security may not be transferred except as a whole by the Depositary for such
Registered 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
such Depositary or any such nominee to a successor of such Depositary or a
nominee of such successor.
The specific terms of the depositary arrangement with respect to any portion
of a series of Debt Securities to be represented by a Registered Global Security
will be described in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a Registered Global Security will be
limited to persons that have accounts with the Depositary for such Registered
Global Security ("participants") or persons that may hold interests through
participants. Upon the issuance of a Registered Global Security, the Depositary
for such Registered Global Security will credit, on its book-entry registration
and transfer system, the participants' accounts with the respective principal
amounts of the Debt Securities represented by such Registered Global Security
beneficially owned by such participants. The accounts to be credited shall be
designated by any dealers, underwriters or agents participating in the
distribution of such Debt Securities. Ownership of beneficial interests in such
Registered Global Security will be shown on, and the transfer of such ownership
interests will be effected only through, records maintained by the Depositary
for such Registered Global Security (with respect to interests of participants)
and on the records of participants (with respect to interests of persons holding
through participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities
7
<PAGE>
in definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in Registered Global Securities.
So long as the Depositary for a Registered Global Security, or its nominee,
is the registered owner of such Registered Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Registered Global Security for all
purposes under the Indenture. Except as set forth below, owners of beneficial
interest in a Registered Global Security will not be entitled to have their Debt
Securities represented by such Registered Global Security registered in their
names, will not receive or be entitled to receive physical delivery of such Debt
Securities in definitive form and will not be considered the owners or holders
thereof under the Indenture. Accordingly, each person owning a beneficial
interest in a Registered Global Security must rely on the procedures of the
Depositary for such Registered Global Security and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder under the Indenture. The
Company understands that under existing industry practices, if the Company
requests any action of holders or if an owner of a beneficial interest in a
Registered Global Security desires to give or take any action which a holder is
entitled to give or take under the Indenture, the Depositary for such Registered
Global Security would authorize the participants holding the relevant beneficial
interests to give or take such action, and such participants would authorize
beneficial owners owning through such participants to give or take such action
or would otherwise act upon the instructions of beneficial owners holding
through them.
Principal, premium, if any, and interest payments, if any, on Debt
Securities represented by a Registered Global Security registered in the name of
a Depositary or its nominee will be made to such Depositary or its nominee, as
the case may be, as the registered owner of such Registered Global Security.
None of the Company, the Trustee or any other agent of the Company or agent of
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 such Registered Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company expects that the Depositary for any Debt Securities represented
by a Registered Global Security, upon receipt of any payment of principal,
premium or interest in respect of such Registered Global Security, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in such Registered Global Security as
shown on the records of such Depositary. The Company also expects that payments
by participants to owners of beneficial interests in such Registered Global
Security held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name", and will be the responsibility of such participants.
If the Depositary for any Debt Securities represented by a Registered Global
Security is at any time unwilling or unable to continue as Depositary or ceases
to be a clearing agency registered under the Exchange Act, and a successor
Depositary registered as a clearing agency under the Exchange Act is not
appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive form in exchange for such Registered Global Security.
In addition, the Company may at any time and in its sole discretion determine
not to have any of the Debt Securities of a series represented by one or more
Registered Global Securities and, in such event, will issue Debt Securities of
such series in definitive form in exchange for all of the Registered Global
Security or Securities representing such Debt Securities. Any Debt Securities
issued in definitive form in exchange for a Registered Global Security will be
registered in such name or names as the Depositary shall instruct the Trustee.
It is expected that such instructions will be based upon directions received by
the Depositary from participants with respect to ownership of beneficial
interests in such Registered Global Security.
8
<PAGE>
The Debt Securities of a series may also be issued in the form of one or
more bearer global Debt Securities (a "Bearer Global Security") that will be
deposited with a common depositary for Euro-clear and CEDEL, or with a nominee
for such depositary identified in the Prospectus Supplement relating to such
series. The specific terms and procedures, including the specific terms of the
depositary arrangement, with respect to any portion of a series of Debt
Securities to be represented by a Bearer Global Security will be described in
the Prospectus Supplement relating to such series.
RESTRICTIVE COVENANTS
Limitation On Liens. The Indenture provides with respect to each series of
Debt Securities that, unless the terms of such series of Debt Securities provide
otherwise, the Company will not create or assume, or permit any Restricted
Subsidiary to create or assume, any mortgage, pledge, security interest or lien
("Mortgage") of or upon any Principal Property or any shares of capital stock or
indebtedness of any Restricted Subsidiary, unless the Debt Securities of such
series are secured by such Mortgage equally and ratably with all other
indebtedness thereby secured. Such covenant does not apply to (a) Mortgages on
any Principal Property, shares of stock or indebtedness of any corporation
existing at the time such corporation becomes a Restricted Subsidiary, (b)
Mortgages on any Principal Property acquired, constructed or improved by the
Company or any Restricted Subsidiary after the date of the Indenture which are
created or assumed contemporaneously with such acquisition, construction or
improvement or within 120 days after the latest of the acquisition, completion
of construction (including any improvement on any existing property) or
commencement of commercial operation of such property, (c) Mortgages on any
Principal Property or shares of stock or indebtedness acquired from a
corporation merged with or into the Company or a Restricted Subsidiary, (d)
Mortgages on any Principal Property to secure indebtedness of a Restricted
Subsidiary to the Company or another Restricted Subsidiary, (e) Mortgages on any
Principal Property in favor of the United States of America or any State thereof
or The Commonwealth of Puerto Rico or any political subdivision thereof to
secure progress or other payments or to secure indebtedness incurred for the
purpose of financing the cost of acquiring, constructing or improving such
Principal Property (including Mortgages incurred in connection with pollution
control, industrial revenue, Title XI maritime financings or similar
financings), (f) Mortgages existing on the date of the Indenture and (g) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Mortgage referred to in the foregoing
clauses (a) to (f), inclusive. (Section 3.6)
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries
may, without securing the Debt Securities of any series, create or assume
Mortgages (which would otherwise be subject to the foregoing restrictions)
securing indebtedness in an aggregate amount which, together with all other
Exempted Debt (as defined) of the Company and its Restricted Subsidiaries, does
not at the time exceed 10% of the Company's consolidated net tangible assets
(defined in the indenture as total assets less current liabilities and
intangible assets). (Section 3.6)
Sale And Lease-Back Transactions. The Indenture provides with respect to
each series of Debt Securities that, unless the terms of such series of Debt
Securities provide otherwise, Sale and Lease-Back Transactions (as defined) by
the Company or any Restricted Subsidiary of any Principal Property are
prohibited except in the event that (a) the Company or such Restricted
Subsidiary would be entitled to incur indebtedness secured by a Mortgage on the
Principal Property to be leased equal in amount to the Attributable Debt (as
defined) with respect to such Sale and Lease-Back Transaction without equally or
ratably securing the Securities of such series; or (b) the Company applies an
amount equal to the fair value of the property sold to the purchase of Principal
Property or to the retirement of Long-Term Indebtedness (as defined)of the
Company within 120 days of the effective date of any such Sale and Lease-Back
Transaction. In lieu of applying such amount to such retirement the Company may
deliver Debt Securities to the Trustee for cancellation, such Debt Securities to
be credited at the cost thereof to the Company. (Section 3.7)
9
<PAGE>
Notwithstanding the foregoing, the Company or any Restricted Subsidiary may
enter into any Sale and Lease-Back Transaction (which would otherwise be subject
to the foregoing restrictions) as long as the Attributable Debt resulting from
such Sale and Lease-Back Transaction, together with all other Exempted Debt of
the Company and its Restricted Subsidiaries, does not at the time exceed 10% of
the Company's consolidated net tangible assets. (Section 3.7)
The term "Principal Property" means the Company's principal office building
and each manufacturing plant or research facility located within the territorial
limits of the States of the United States of America or The Commonwealth of
Puerto Rico (but not within any other territorial possession) of the Company or
a Subsidiary except such as the Board of Directors by resolution reasonably
determines (taking into account, among other things, the importance of such
property to the business, financial condition and earnings of the Company and
its consolidated Subsidiaries taken as a whole) not to be a Principal Property.
(Section 1.01)
The term "Subsidiary" means any corporation (other than Genetics Institute,
Inc.) the outstanding securities of which having ordinary voting power to elect
a majority of the board of directors of such corporation are at the time owned
or controlled by the Company or by one or more Subsidiaries or by the Company
and one or more Subsidiaries, other than a Subsidiary which is engaged primarily
in financing receivables, making loans, extending credit, providing financing
from foreign sources or other activities of a character conducted by a finance
company. The term "Restricted Subsidiary" means any Subsidiary which owns a
Principal Property. (Section 1.01)
Consolidation, Merger And Sale Of Assets. The Company may not consolidate
with, merge into, or sell or convey its property and assets substantially as an
entirety to another entity unless the successor entity assumes all the
obligations of the Company under the Indenture and the Debt Securities and after
giving effect thereto, no default or Event of Default shall have occurred and be
continuing and such successor entity shall be incorporated under the laws of the
United States or any State. Thereafter, except in the case of a conveyance by
way of lease, all such obligations of the Company shall terminate. (Section 9.1)
The Indenture further provides with respect to each series of Debt Securities
that, unless the terms of such series of Debt Securities provide otherwise, the
Company will not, and will not permit any Restricted Subsidiary to, merge or
consolidate with another corporation, or sell all or substantially all of its
assets to another corporation for a consideration other than the fair value
thereof in cash, if such other corporation has outstanding obligations secured
by a mortgage which, after such transaction, would extend to any Principal
Property owned by the Company or such Restricted Subsidiary prior to such
transaction, unless the Company or such Restricted Subsidiary shall have
effectively provided that the Debt Securities of such series will be secured by
a mortgage which, upon completion of the aforesaid transaction, will rank prior
to such mortgage of such other corporation on any Principal Property. (Section
3.6)
The provisions of the Indenture do not afford holders of the Debt Securities
protection in the event of a highly leveraged or other transaction involving the
Company that may adversely affect holders of the Debt Securities.
EVENTS OF DEFAULT
An Event of Default with respect to Debt Securities of any series is defined
under the Indenture as being: (a) default in payment of any principal of the
Debt Securities of such series, either at maturity, upon any redemption, by
declaration or otherwise; (b) default for 30 days in payment of any interest on
any Debt Securities of such series; (c) default for 90 days after written notice
in the observance or performance of any other covenant or agreement in the Debt
Securities of such series or the Indenture; (d) certain events of bankruptcy,
insolvency or reorganization; or (e) any other Event of Default provided for in
the Debt Securities of such series or in the supplemental indenture creating
such Debt Securities. (Section 5.1)
10
<PAGE>
The Indenture provides that (i) if an Event of Default described in the
foregoing clauses (a), (b), (c) or (e) (if the Event of Default under clause (c)
or (e) is with respect to less than all series of Debt Securities then
outstanding) shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of the Debt Securities of all
affected series (treated as one class) then outstanding may then declare the
principal of all Debt Securities of all such affected series and interest
accrued thereon to be due and payable immediately; and (ii) if an Event of
Default described in the foregoing clauses (d), (c) or (e) (if the Event of
Default under clause (c) or (e) is with respect to all series of Debt Securities
then outstanding) shall have occurred and be continuing, either the Trustee or
the holders of not less than 25% in principal amount of all Debt Securities then
outstanding (treated as one class) may declare the principal of all Debt
Securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal of or interest on
such Debt Securities) by the holders of a majority in principal amount of the
Debt Securities of all such affected series then outstanding. (Section 5.1)
Subject to certain limitations, the holders of a majority in principal
amount of the outstanding Debt Securities (treated as one class) may 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. (Section
5.9)
The Indenture provides that no holder of Debt Securities may institute any
action under the Indenture (except actions for payment of overdue principal or
interest) unless such holder previously shall have given to the Trustee written
notice of default and continuance thereof and unless the holders of not less
than 25% in principal amount of the Debt Securities of each affected series
(treated as one class) then outstanding shall have requested the Trustee to
institute such action and shall have offered the Trustee reasonable indemnity,
the Trustee shall not have instituted such action within 60 days of such request
and the Trustee shall not have received direction inconsistent with such written
request by the holders of a majority in principal amount of the Debt Securities
of each affected series (treated as one class). (Section 5.6)
The Indenture contains a covenant that the Company will file annually with
the Trustee a certificate of no default or a certificate specifying any default
that exists. (Section 3.5)
DEFEASANCE
The Indenture provides that, with respect to each series of Debt Securities,
unless the terms of such series of Debt Securities provide otherwise, the
Company shall be discharged from its obligations under the Debt Securities of
such series if the Company irrevocably deposits with the Trustee in trust (i)
cash, or (ii) in the case of any series of Debt Securities the payments on which
may only be made in Dollars (as defined), U.S. Government Obligations (as
defined), maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (iii) any combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent accountants to pay when due the principal and interest on all Debt
Securities of such series and any mandatory sinking fund payments provided that
certain other conditions are met. These conditions include the delivery to the
Trustee of an opinion of counsel to the effect that the Holders of the Debt
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit, defeasance and
discharge had not occurred. Upon such discharge, the provisions of the Indenture
with respect to the Debt Securities of such series shall no longer be in effect
except for certain rights, including registration of transfer and exchange of
Debt Securities of such series and substitution of mutilated, defaced,
destroyed, lost or stolen Debt Securities. (Section 10.1)
11
<PAGE>
The Company will be released from its obligations with respect to the
covenants relating to the limitation on liens and sale and lease-back
transactions and the restriction on consolidations, mergers and sale of assets
with respect to the Debt Securities on and after the date the conditions set
forth below are satisfied ("covenant defeasance"). Covenant defeasance means
that, with respect to the outstanding Debt Securities of any series, the Company
may omit to comply with and will have no liability in respect of any term,
condition or limitation with respect to such provisions of the Indenture and
such omission to comply shall not constitute an Event of Default, but the other
terms of the Indenture and such Debt Securities shall be unaffected thereby. The
following are the conditions to covenant defeasance: (a) the Company has
irrevocably deposited or caused to be deposited with the Trustee in trust (i)
cash, or (ii) in the case of any series of Debt Securities the payments on which
may only be made in Dollars, U.S. Government Obligations maturing as to
principal and interest at such times and in such amounts as will insure the
availability of cash or (iii) a combination thereof, sufficient, in the opinion
of a nationally recognized firm of independent public accountants to pay when
due (A) the principal and interest on all Debt Securities of such series and (B)
any mandatory sinking fund payments; (b) no Event or Default or event which with
notice or lapse of time or both would become an Event of Default with respect to
the Debt Securities shall have occurred and be continuing on the date of such
deposit; and (c) certain other customary conditions. (Section 10.1)
MODIFICATION OF THE INDENTURE
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Debt Securities
to: (a) secure any Debt Securities, (b) evidence the assumption by a successor
corporation of the obligations of the Company, (c) add covenants for the
protection of the holders of Debt Securities, (d) cure any ambiguity or correct
any inconsistency in the Indenture, (e) establish the forms or terms of Debt
Securities of any series and (f) evidence the acceptance of appointment by a
successor trustee. (Section 8.1)
The Indenture also contains provisions permitting the Company and the
Trustee, with the consent of the holders of not less than a majority in
principal amount of Debt Securities of each series then outstanding and
affected, to add any provisions to, or change in any manner or eliminate any of
the provisions of, the Indenture or modify in any manner the rights of the
holders of the Debt Securities of each series so affected; provided that the
Company and the Trustee may not, without the consent of the holder of each
outstanding Debt Security affected thereby, (a) extend the final maturity of the
principal of any Debt 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 the redemption thereof or change the currency in which the principal
thereof (including any amount in respect of original issue discount) or interest
thereon is payable or reduce the amount of any original issue discount security
payable upon acceleration or provable in bankruptcy or alter certain provisions
of the Indenture relating to Debt Securities not denominated in U.S. dollars or
impair the right to institute suit for the enforcement of any payment on any
Debt Security when due, (b) reduce the aforesaid percentage in principal amount
of Debt Securities of any series, the consent of the holders of which is
required for any such modification or (c) modify any of the foregoing provisions
except to increase the aforesaid percentage or to provide that other provisions
of the Indenture may not be amended or waived without the consent of the holder
of each outstanding Debt Security affected thereby. (Section 8.2)
THE TRUSTEE
The Trustee, Chemical Bank, is the administrative agent under the Credit
Facilities, and a lending bank for $290 million thereunder. In addition, the
Trustee performs various other services for the Company, including acting as a
placement agent (through its affiliate Chemical Securities Inc.) with respect to
a portion of the Notes and as the issuance and paying agent with respect to all
such Notes, and as registrar and transfer agent of the Company's Common Stock.
In connection with the Acquisition, the Trustee acted as depositary for the
Offer and is the paying agent with respect to the Merger.
12
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities being offered hereby in four ways:
(i) directly to purchasers, (ii) through agents, (iii) through underwriters and
(iv) through dealers.
Offers to purchase Debt Securities may be solicited 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, involved in the offer
or sale of the Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent 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 and the Company will enter into a distribution
agreement with such agents. Agents may be entitled under agreements which may be
entered into with the Company to indemnification by the Company against certain
civil liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If any underwriters are utilized in the sale, the Company will enter into an
underwriting 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 Debt Securities in respect of which this Prospectus is delivered
to the public. The underwriters may be entitled, under the relevant underwriting
agreement, to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for the Company in the ordinary course
of business.
If a dealer is utilized in the sale of the Debt Securities in respect of
which this Prospectus is delivered, the Company will sell such Debt Securities
to the dealer, as principal. The dealer may then resell such Debt Securities to
the public at varying prices to be determined by such dealer at the time of
resale. Dealers may be entitled to indemnification by the Company against
certain liabilities, including liabilities under the Securities Act, and may be
customers of, engage in transactions with or perform services for the Company in
the ordinary course of business.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters and/or dealers to solicit offers by certain purchasers to
purchase Offered Debt Securities from the Company at the public offering price
set forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject only to those conditions set forth in the Prospectus
Supplement, and the Prospectus Supplement will set forth the commission payable
for solicitation of such offers.
LEGAL MATTERS
Louis L. Hoynes, Jr., Senior Vice President and General Counsel of the
Company, is passing upon the legality of the Debt Securities. On behalf of
dealers, underwriters and/or agents, Willkie Farr & Gallagher is passing upon
certain legal matters in connection with the offering of the Debt Securities.
Willkie Farr & Gallagher has in the past represented and continues to represent
the Company in a variety of matters. Mr. Hoynes is the beneficial owner of 348
shares of the Company's common stock and holds options to acquire 95,000 shares
which are exercisable within 60 days. In addition, Mr. Hoynes is a participant
in various compensation plans of the Company, including the Management Incentive
Plan, that provide for the issuance of equity securities of the Company.
EXPERTS
The consolidated financial statements of the Company at December 31, 1993
and 1992 and for each of the three years in the period ended December 31, 1993,
appearing in its Annual Report on Form 10-K for the fiscal year ended December
31, 1993 and incorporated in this Prospectus by reference,
13
<PAGE>
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto and incorporated by reference
herein. The financial statements referred to above are included in reliance upon
the report of said firm and upon the authority of said firm as experts in
auditing and accounting.
The consolidated financial statements of Cyanamid and its subsidiaries as of
December 31, 1993 and 1992, and for each of the years in the three-year period
ended December 31, 1993, incorporated by reference in the Company's Report on
Form 8-K dated December 6, 1994, are incorporated by reference herein and in the
Registration Statement, in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
The report of KPMG Peat Marwick LLP covering the December 31, 1993 financial
statements refers to the adoption of the provisions of Statements of Financial
Accounting Standards No. 106, "Employers' Accounting for Postretirement Benefits
Other Than Pensions", and No. 109, "Accounting for Income Taxes", effective
January 1, 1993.
14
<PAGE>
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NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT OR PRICING SUPPLEMENT IN CONNECTION WITH THE OFFERING HEREIN AND
THEREIN AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER
OR AGENT. NONE OF THIS PROSPECTUS, NOR ANY PROSPECTUS SUPPLEMENT OR PRICING
SUPPLEMENT SHALL CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY DEBT SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL
TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS, THE
PROSPECTUS SUPPLEMENT OR THE PRICING SUPPLEMENT, NOR ANY SALE OR OFFER TO SELL
THE DEBT SECURITIES OFFERED HEREBY SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE
THE RESPECTIVE DATES OF THIS PROSPECTUS, THE PROSPECTUS SUPPLEMENT OR THE
PRICING SUPPLEMENT.
-------------------
TABLE OF CONTENTS
PAGE
-----
Prospectus............................ 1
Available Information................. 2
Incorporation of Documents by
Reference............................. 3
The Company........................... 4
Ratio of Earnings to Fixed Charges.... 5
Use of Proceeds....................... 5
Description of Debt Securities........ 6
Plan of Distribution.................. 13
Legal Matters......................... 13
Experts............................... 13
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$3,500,000,000
AMERICAN HOME PRODUCTS
CORPORATION
DEBT SECURITIES
-------------------
PROSPECTUS
-------------------
JANUARY , 1995
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Registration Fee............................................ $1,120,689.66
Rating Agency Fees.......................................... 447,300*
Fees and Expenses of Trustee................................ 20,000*
Printing Expenses........................................... 40,000*
Accountants' Fees and Expenses.............................. 40,000*
Blue Sky Fees and Expenses.................................. 25,000*
Miscellaneous Expenses...................................... 7,010.34*
-------------
Total................................................. 1,700,000
- ------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Nine of the Company's Restated Certificate of Incorporation provides
for the elimination of personal monetary liabilities of directors of the Company
for breaches of certain of their fiduciary duties to the full extent permitted
by Section 102(b)(7) of the General Corporation Law of Delaware (the "GCL").
Section 102(b)(7) of the GCL enables a corporation in its certificate of
incorporation to eliminate or limit the personal liability of members of its
board of directors to the corporation or its shareholders for monetary damages
for violations of a director's fiduciary duty as a director. Such a provision
has no effect on the availability of equitable remedies, such as an injunction
or rescission, for breach of fiduciary duty. In addition, no such provision may
eliminate or limit the liability of a director for breaching his or her duty of
loyalty, failing to act in good faith, engaging in intentional misconduct or
knowingly violating the law, paying an unlawful dividend or approving an illegal
stock repurchase, or obtaining an improper personal benefit.
Section 145 of the GCL provides that a corporation may indemnify directors
and officers as well as other employees and individuals against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with specified actions, suits or proceedings, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation--a "derivative action"), if they acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interests of the corporation and, with respect to any criminal action or
proceedings, had no reasonable cause to believe their conduct was unlawful. A
similar standard is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's by-laws, disinterested
director vote, stockholder vote, agreement or otherwise.
The Company's By-laws provide that the Company is authorized to provide
indemnification and to advance expenses to its directors, officers and employees
in respect of claims, actions, suits or proceedings based upon, arising from,
relating to or by reason of the fact that any such director or officer serves in
such capacity with the Company or at the request of the Company in any capacity
with any other corporation or entity of which the Company is or was a
stockholder, creditor or otherwise interested.
II-1
<PAGE>
The Company maintains directors' and officers' liability insurance which
insures against liabilities that directors or officers of the Company may incur
in such capacities.
The form of Underwriting Agreement and U.S. Distribution Agreement filed as
Exhibits 1-a and 1-b, respectively, provide for the indemnification of the
Company, its controlling persons, its directors and officers by any agents,
dealers or underwriters who execute those agreements against certain liabilities
which might arise from information furnished to the Company by such indemnifying
party.
ITEM 16. EXHIBITS
EXHIBIT
NO.
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1-a -- Form of Underwriting Agreement
1-b -- Form of Distribution Agreement
4-a -- Indenture dated as of April 10, 1992 between American Home Products
Corporation and Chemical Bank (successor by merger to Manufacturers
Hanover Trust Company), as trustee
4-b -- Supplemental Indenture dated October 13, 1992 between American Home
Products Corporation and Chemical Bank (successor by merger to
Manufacturers Hanover Trust Company) as trustee
4-c -- Form of Floating Rate Note
4-d -- Form of Fixed Rate Note
5 -- Opinion of Louis L. Hoynes, Jr., Senior Vice President and General
Counsel of American Home Products Corporation, as to the legality
of the Debt Securities to be issued
12 -- Computation of Ratio of Earnings to Fixed Charges
12.1 -- Computation of Pro Forma Ratio of Earnings to Fixed Charges for the
Nine Months Ended September 30, 1994
12.2 -- Computation of Pro Forma Ratio of Earnings to Fixed Charges for the
Year Ended December 31, 1993
23-a -- Consent of Arthur Andersen LLP
23-b -- Consent of KPMG Peat Marwick LLP
23-c -- Consent of Louis L. Hoynes, Jr., Senior Vice President and General
Counsel of American Home Products Corporation, is contained in his
opinion filed as Exhibit 5
24 -- Powers of Attorney (included on the signature page)
25 -- Form T-1 Statement of Eligibility of Trustee under the Trust Indenture
Act of 1939 of Chemical Bank
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes, with respect to itself, as
appropriate:
(a)(1) to file during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the 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
the Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(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
II-2
<PAGE>
the registrant pursuant to section 13 or section 15(d) of the Exchange
Act that are incorporated by reference in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, 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; and
(b) that, for purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Exchange Act (and, where applicable, each filing of
any employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) that is incorporated by reference in the 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
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, except pursuant
to the insurance policies referred to in Item 15, the registrant has been
advised that in the opinion of the Securities Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by such registrant of expenses
incurred or paid by a director, officer or controlling person of such 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 indemnification by it is against public
policy as expressed in the Securities 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,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(B)(1) or(4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, 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>
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies
that it has reasonable grounds to believe that it meets all 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 Borough of
Madison, County of Morris and State of New Jersey, on this 18th day of January,
1995.
AMERICAN HOME PRODUCTS CORPORATION
(REGISTRANT)
By /s/ JOHN R. STAFFORD
...................................
(John R. Stafford Chairman of the
Board, President and Chief
Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints John R.
Stafford, Robert G. Blount and Louis L. Hoynes, Jr., each of them, as his or her
true and lawful attorney-in- fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and all documents relating 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 attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing necessary or advisable to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of Securities Act, this Registration Statement
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/ JOHN R. STAFFORD Chairman of the Board, January 18, 1995
........................................ President and Director--
(John R. Stafford) Principal Executive Officer
/s/ ROBERT G. BLOUNT Executive Vice President and January 18, 1995
........................................ Director--Principal Financial
(Robert G. Blount) Officer
/s/ JOHN R. CONSIDINE Vice President--Finance-- January 18, 1995
........................................ Principal Accounting Officer
(John R. Considine)
/s/ CLIFFORD L. ALEXANDER Director January 18, 1995
........................................
(Clifford L. Alexander)
/s/ FRANK A. BENNACK, JR. Director January 18, 1995
........................................
(Frank A. Bennack, Jr.)
</TABLE>
II-4
<PAGE>
<TABLE><CAPTION>
SIGNATURE TITLE DATE
- ---------------------------------------- ------------------------------ ----------------
<S> <C> <C>
/s/ K. ROALD BERGETHON Director January 18, 1995
........................................
(K. Roald Bergethon)
/s/ JOHN W. CULLIGAN Director January 18, 1995
........................................
(John W. Culligan)
/s/ ROBIN CHANDLER DUKE Director January 18, 1995
........................................
(Robin Chandler Duke)
/s/ JOHN D. FEERICK Director January 18, 1995
........................................
(John D. Feerick)
/s/ EDWIN A. GEE Director January 18, 1995
........................................
(Edwin A. Gee)
/s/ ROBERT W. SARNOFF Director January 18, 1995
........................................
(Robert W. Sarnoff)
/s/ JOHN R. TORELL III Director January 18, 1995
........................................
(John R. Torell III)
/s/ WILLIAM WRIGLEY Director January 18, 1995
........................................
(William Wrigley)
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
- ------- ----------------------------------------------------------------------
1-a --Form of Underwriting Agreement
1-b --Form of Distribution Agreement
4-a --Indenture dated as of April 10, 1992 between American Home Products
Corporation and Chemical Bank (successor by merger to Manufacturers
Hanover Trust Company), as trustee
4-b --Supplemental Indenture dated October 13, 1992 between American Home
Products Corporation and Chemical Bank (successor by merger to
Manufacturers Hanover Trust Company), as trustee
4-c --Form of Floating Rate Note
4-d --Form of Fixed Rate Note
5 --Opinion of Louis L. Hoynes, Jr., Senior Vice President and General
Counsel of American Home Products Corporation, as to the legality of
the Debt Securities to be issued
12 --Computation of Ratio of Earnings to Fixed Charges
12.1 --Computation of Pro Forma Ratio of Earnings to Fixed Charges for the
Nine Months Ended September 30, 1994
12.2 --Computation of Pro Forma Ratio of Earnings to Fixed Charges for the
Year Ended December 31, 1993
23-a --Consent of Arthur Andersen LLP
23-b --Consent of KPMG Peat Marwick LLP
23-c --Consent of Louis L. Hoynes, Jr., Senior Vice President and General
Counsel of American Home Products Corporation, is contained in his
opinion filed as Exhibit 5
24 --Powers of Attorney (included on the signature page)
25 --Form T-1 Statement of Eligibility of Trustee under the Trust Indenture
Act of 1939 of Chemical Bank
II-6
Exhibit 1(a)
DRAFT
12/7/94
UNDERWRITING AGREEMENT
, 199
----------------- -
AMERICAN HOME PRODUCTS CORPORATION
Five Giralda Farms
Madison, New Jersey 07940
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that American Home
Products Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell [Currency and Principal Amount] aggregate initial offering price of
[Full title of Debt Securities] (the "Debt Securities"). The Debt Securities
are also referred to herein as the "Offered Securities." The Debt Securities
will be issued pursuant to the provisions of an Indenture dated as of April 10,
1992 between the Company and Chemical Bank (as successor to Manufacturers
Hanover Trust Company), as Trustee (the "Trustee"), as supplemented by a
Supplemental Indenture dated as of October 13, 1992 (the "Indenture").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of Debt
Securities set forth below opposite their names at a purchase price of _____% of
the principal amount of Debt Securities [, plus accrued interest, if any, from
[Date of Offered Securities] to the date of payment and delivery]*:
Principal Amount of
Name Debt Securities
---- -------------------
[Insert syndicate list]
Total.....
===================
- -----------------------------
* To be added only if the transaction does not close flat.
<PAGE>
[The principal amount of Debt Securities to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for the Offered Securities [(less any Offered
Securities sold pursuant to delayed delivery contracts)] upon delivery thereof
at [office] at a.m. (New York time) on , 199 , or at such
------ ----------- -
other time, not later than 5:00 p.m. (New York time) on , 199 , as
---------- -
shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.**
The Offered Securities shall have the terms set forth in the Prospectus
dated , 199 , and the Prospectus Supplement dated , 199 ,
----------- - ------------ -
including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: and
------------ ---
commencing
------------ ---
,
---------------- ----
[(Interest accrues from
, )]***
---------------- ----
Form and Denomination:
[Other Terms:]
- -----------------------------
* To be added only if delayed delivery contracts are contemplated.
** This paragraph would have to be modified for any Offered Securities that
are in bearer form.
*** To be added only if the transaction does not close flat.
2
<PAGE>
[The commission to be paid to the Underwriters in respect of the Offered
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be % of the principal amount of the Debt Securities so
---
purchased.]*
All provisions contained in the document entitled American Home Products
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
-
, 199 , a copy of which is attached hereto, are herein incorporated by
- ---- -
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, (ii) all references in
such document to a type of security that is not an Offered Security shall not be
deemed to be a part of this Agreement and (iii) all references in such document
to a type of agreement that has not been entered into in connection with the
transactions contemplated hereby shall not be deemed to be a part of this
Agreement.
- -----------------------------
* To be added only if delayed delivery contacts are contemplated.
3
<PAGE>
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
By:
By:
-----------------------------------
Name:
Title:
Accepted:
AMERICAN HOME PRODUCTS CORPORATION
By:
-------------------------------
Name:
Title:
4
<PAGE>
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Manager]
acting severally on behalf of itself and the
several Underwriters named herein
By:
---------------------------------
Name:
Title:
Accepted:
AMERICAN HOME PRODUCTS CORPORATION
By:
-------------------------------
Name:
Title:
4
<PAGE>
AMERICAN HOME PRODUCTS CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
___________ __, 199_
From time to time, American Home Products Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement" and "amendment" or "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such changes therein as the Company may approve (the
"Delayed
<PAGE>
Delivery Contracts"). The term "Underwriters' Securities" means the Offered
Securities other than Contract Securities.
1. Representations and Warranties. The Company represents and warrants
------------------------------
to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective, did not contain, and the
Registration Statement, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply at the time of such
amendment or supplement in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain at the time of such amendment or supplement any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein or (B) to that part of the Registration
Statement that constitutes 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.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that
2
<PAGE>
the failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each Restricted Subsidiary (as defined in the Indenture) of the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) The Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company, enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability.
(h) The Offered Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
the Underwriting Agreement, in the case of the Underwriters' Securities, or by
institutional investors in accordance with the terms of the Delayed Delivery
Contracts, in the case of the Contract Securities, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (i) the
enforceability
3
<PAGE>
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Offered Securities and the Delayed Delivery Contracts will not contravene any
material provision of applicable law or the certificate of incorporation or
by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its Restricted Subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
Restricted Subsidiary, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Offered Securities or the Delayed Delivery Contracts, except such
as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Offered Securities.
(j) There has not occurred any material adverse change in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
Restricted Subsidiaries is a party or to which any of the properties of the
Company or any of its Restricted Subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or
filed as required.
(l) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(m) Each of the Company and its Restricted Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and permits
of and from, and has made all declarations and filings with, all federal, state,
local and other governmental authorities, all self-regulatory
4
<PAGE>
organizations and all courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the manner described in
the Prospectus, except to the extent that the failure to obtain or file would
not have a material adverse effect on the Company and its subsidiaries, taken as
a whole.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
--------------------------
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the Closing Date, the Company will pay to the Manager as
compensation for the accounts of the Underwriters the commission set forth in
the Underwriting Agreement in respect of the Contract Securities. The
Underwriters will not have any responsibility in respect of the validity or the
performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
-------- -------
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Public Offering. The Company is advised by the Manager that the
---------------
Underwriters propose to make a public offering of their respective portions of
the Underwriters' Securities as soon after this Agreement has been entered into
as in the Manager's judgment is advisable. The terms of the public offering of
the Underwriters' Securities are set forth in the Prospectus.
4. Purchase and Delivery. Except as otherwise provided in this Section
---------------------
4, payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds at the time and place set forth in the Underwriting
Agreement, upon
5
<PAGE>
delivery to the Manager for the respective accounts of the several Underwriters
of the Underwriters' Securities, registered in such names and in such
denominations as the Manager shall request in writing not less than two full
business days prior to the date of delivery, with any transfer taxes payable in
connection with the transfer of the Underwriters' Securities to the Underwriters
duly paid.
Delivery on the Closing Date of any Underwriters' Securities that are
Debt Securities in bearer form shall be effected by delivery of a single
temporary global Debt Security without coupons (the "Global Debt Security")
evidencing the Debt Securities that are in bearer form to a common depositary
for Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euro-clear System ("Euro-clear"), and for Centrale de Livraison de Valeurs
Mobilieres S.A. ("CEDEL") for credit to the respective accounts at Euro-clear or
CEDEL of each Underwriter or to such other accounts as such Underwriter may
direct. Any Global Debt Security shall be delivered to the Manager not later
than the Closing Date, against payment of funds to the Company in the net amount
due to the Company for such Global Debt Security by the method and in the form
set forth in the Underwriting Agreement. The Company shall cause definitive
Debt Securities in bearer form to be prepared and delivered in exchange for such
Global Debt Security in such manner and at such time as may be provided in or
pursuant to the Indenture; provided, however, that the Global Debt Security
-------- -------
shall be exchangeable for definitive Debt Securities in bearer form only on or
after the date specified for such purpose in the Prospectus.
5. Conditions to Closing. The several obligations of the Underwriters
---------------------
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
6
<PAGE>
(ii) there shall not have occurred any change in the
condition, financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus, that, in the reasonable
judgment of the Manager, is materially adverse and that makes it, in
the reasonable judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner contemplated in
the Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied in all material respects with all of
the agreements and satisfied in all material respects all of the
conditions on its part to be performed or satisfied on or before the
Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an opinion
of Louis L. Hoynes, Jr., Senior Vice President and General Counsel of
the Company, dated the Closing Date, to the effect set forth in Exhibit
A.
(d) The Manager shall have received on the Closing Date an opinion
of Willkie Farr & Gallagher, special counsel for the Underwriters, dated
the Closing Date, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6. Covenants of the Company. In further consideration of the
------------------------
agreements of the Underwriters contained herein, the Company covenants as
follows:
7
<PAGE>
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated
by reference therein and any supplements and amendments thereto or to
the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus with respect to the Offered Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to
file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters, and to the dealers
(whose names and addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of
the Underwriters and to any other dealer upon request, either amendments
or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented,
will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection with such qualification and
in connection with (i) the determination of the eligibility of the
Offered Securities for investment under the laws of such jurisdictions
as the Manager may designate and (ii) any
8
<PAGE>
review of the offering of the Offered Securities by the National
Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement covering
a twelve-month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
the rules and regulations of the Commission thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or warrants to purchase debt securities of the
Company substantially similar to the Offered Securities (other than (i)
the Offered Securities and (ii) commercial paper issued in the ordinary
course of business), without the prior written consent of the Manager.
(g) To pay all document production charges and expenses of Willkie
Farr & Gallagher, special counsel to the Underwriters (but not including
their fees for professional services), in connection with the
preparation of this Agreement.
7. Covenants of the Underwriters.
-----------------------------
Each of the several Underwriters represents and agrees with the
Company that:
(a) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or sold, and
during the restricted period will not offer or sell, Debt Securities in
bearer form (including any Debt Security in global form that is
exchangeable for Debt Securities in bearer form) to a person who is
within the United States or its possessions or to a United States person
and (ii) it has not delivered and will not deliver within the United
States or its possessions definitive Debt Securities in bearer form that
are sold during the restricted period;
(b) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer
form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United States
or its
9
<PAGE>
possessions or to a United States person, except as permitted by the D
Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer form
for the purpose of offering or selling such Debt Securities during the
restricted period, it will either (i) obtain from such affiliate for the
benefit of the Company the representations and agreements contained in
clauses (a), (b) and (c) or (ii) repeat and confirm the representations
and agreements contained in clauses (a), (b) and (c) on such affiliate's
behalf and obtain from such affiliate the authority to so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into a
written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale during the restricted
period of Debt Securities in bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may
be offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meanings given to them
by the U.S. Internal Revenue Code and regulations thereunder, including the D
Rules. The restricted period is defined at U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7).
8. Indemnification and Contribution. The Company agrees to indemnify
--------------------------------
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the
10
<PAGE>
Registration Statement or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein; provided, however,
-------- -------
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Offered Securities to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Underwriter,
but only with reference to information relating to such Underwriter furnished to
the Company by such Underwriter in writing through the Manager expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall
11
<PAGE>
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential conflicting interests between them.
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Manager, in
the case of parties indemnified pursuant to the second preceding paragraph, and
by the Company, in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first or second paragraph in
this Section 8 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of
12
<PAGE>
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Offered Securities shall be deemed to be in
the same respective proportions as the net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Offered Securities. The
relative fault of the Company on the one hand and of the Underwriters on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights
13
<PAGE>
or remedies which may otherwise be available to any indemnified party at law or
in equity.
The indemnity and contribution provisions contained in this Section 8
and the representations and warranties of the Company contained herein shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
9. Termination. This Agreement shall be subject to termination, by
-----------
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Manager, is
materially adverse and (b) in the case of any of the events specified in clauses
(a)(i) through (iv), such event, singly or together with any other such event,
makes it, in the reasonable judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner contemplated in the
Prospectus.
10. Defaulting Underwriters. If, on the Closing Date, any one or more
-----------------------
of the Underwriters shall fail or refuse to purchase Underwriters' Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names above bears to the aggregate amount of Underwriters'
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the
14
<PAGE>
Manager may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date; provided that in no event shall the amount of Underwriters'
--------
Securities that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 10 by an amount in excess of
one-ninth of such amount of Underwriters' Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Underwriters' Securities and the aggregate
amount of Underwriters' Securities with respect to which such default occurs is
more than one-tenth of the aggregate amount of Underwriters' Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Underwriters' Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Underwriter or the Company. In any such case
either the Manager or the Company shall have the right to postpone the Closing
Date but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of the Offered Securities.
11. Miscellaneous. The Underwriting Agreement may be signed in any
-------------
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
--------
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
15
<PAGE>
Exhibit A
Opinion of Louis L. Hoynes, Jr.,
Senior Vice President and General Counsel of the Company
The opinion of Louis L. Hoynes, Jr., Senior Vice President and General
Counsel of the Company, to be delivered pursuant to Section 5(c) of the
Underwriting Agreement shall be to the effect that:
(i) the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) each Restricted Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(iii) each of the Company and its Restricted Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, except to the extent
that the failure to obtain or file
<PAGE>
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(iv) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(v) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (a) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(vi) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (a) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) the availability of equitable remedies may be limited
by equitable principles of general applicability;
(vii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
Underwriters' Securities, or by institutional investors in accordance
with the terms of the Delayed Delivery Contracts, in the case of the
Contract Securities, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (a) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration, if any, and
the availability of equitable remedies may be limited by equitable
principles of general applicability;
(viii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement, the Indenture, the Offered Securities, and the Delayed
Delivery Contracts
A-2
<PAGE>
will not contravene any material provision of applicable law or the
certificate of incorporation or by-laws of the Company, or any agreement
or other instrument binding upon the Company or any of its Restricted
Subsidiaries that is material to the Company and its subsidiaries, taken
as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any Restricted
Subsidiary, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under the Underwriting
Agreement, the Indenture, the Offered Securities, or the Delayed
Delivery Contract, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and
sale of the Offered Securities;
(ix) the statements (1) in the Prospectus, as amended or
supplemented, under the captions "Description of Debt Securities" and
"Plan of Distribution", (2) in the Registration Statement under Item 15
and _________, (3) in "Item 3 - Legal Proceedings" of the Company's most
recent annual report on Form 10-K incorporated by reference in the
Prospectus and (4) in "Item 1 - Legal Proceedings" of Part II of the
Company's quarterly reports on Form 10-Q, if any, filed since such
annual report, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(x) there are no legal or governmental proceedings pending or, to
the knowledge of such counsel, threatened to which the Company or any of
its Restricted Subsidiaries is a party or to which any of the properties
of the Company or any of its Restricted Subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus
and are not so described or of any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required;
A-3
<PAGE>
(xi) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(xii) such counsel is of the opinion ascribed to him in the
Prospectus under the caption "[Taxation]", if any; and
(xiii) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial information, statements and schedules
included therein as to which such counsel need not express any opinion)
complied when so filed as to form in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (2) believes that (except for financial information,
statements and schedules as to which such counsel need not express any
belief and except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) the Registration
Statement, when it became effective, 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, (3) is of the opinion that the Registration Statement and
Prospectus, as amended or supplemented, if applicable (except for
financial information, statements and schedules included therein as to
which such counsel need not express any opinion), as of the date such
opinion is delivered comply as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (4) believes that (except for financial
information, statements and schedules as to which such counsel need not
express any belief) the Prospectus, as amended or supplemented, if
applicable, as of the date such opinion is delivered does not contain
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
The opinion of Louis L. Hoynes, Jr. described above shall be rendered to
the Underwriters at the request of the Company and shall so state therein. In
giving such opinion, Louis L. Hoynes, Jr. may rely, to the extent stated in his
opinion, upon such other opinions as he deems necessary, which
A-4
<PAGE>
opinions are in form and substance reasonably satisfactory to counsel for the
Underwriters, provided that Louis L. Hoynes, Jr. furnish a copy thereof to the
Underwriters and state that such opinions are satisfactory in form and scope
and that the Underwriters and counsel for the Underwriters are entitled to rely
thereon.
A-5
<PAGE>
Exhibit B
Opinion of Willkie Farr & Gallagher,
Counsel for the Underwriters
The opinion of Willkie Farr & Gallagher, counsel for the Underwriters,
to be delivered pursuant to Section 5(d) of the Underwriting Agreement shall be
to the effect that:
(i) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(ii) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (a) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(iii) the Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company, enforceable in accordance with their respective terms except as
(a) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(iv) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
the Underwriters' Securities, or by institutional investors in
accordance with the terms of the Delayed Delivery Contracts, in the case
of the Contract Securities, will be entitled to the benefits of the
Indenture
<PAGE>
and will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (a) the enforceability thereof may
be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration, if any, and
the availability of equitable remedies may be limited by equitable
principles of general applicability;
(v) the statements in the Prospectus, as amended or supplemented,
under the captions "Description of Debt Securities," and "Plan of
Distribution," insofar as such statements constitute summaries of the
legal matters or documents referred to therein, fairly present the
information called for with respect to such legal matters and documents
and fairly summarize the matters referred to therein;
(vi) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended; and
(vii) such counsel (1) believes that (except for financial information,
statements and schedules as to which such counsel need not express any
belief and except for that part of the Registration Statement that
constitutes the Form T-1 heretofore referred to) the Registration
Statement, when it became effective, 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, (2) is of the opinion that the Registration Statement and
Prospectus, as amended or supplemented, if applicable (except for
financial information, statements and schedules included therein as to
which such counsel need not express any opinion) comply as to form in
all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (3) believes that
(except for financial information, statements and schedules as to which
such counsel need not express any belief) the Prospectus, as amended or
supplemented, if applicable, as of the date such opinion is delivered
does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein,
B-2
<PAGE>
in light of the circumstances under which they were made, not
misleading.
With respect to clause (vii) above, such counsel may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments or supplements
thereto (other than the documents incorporated by reference) and upon review and
discussion of the contents thereof (including documents incorporated by
reference) but are without independent check or verification, except as
specified.
B-3
<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
, 199
------------------ -
Dear Sirs:
The undersigned hereby agrees to purchase from American Home Products
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
sell to the undersigned the Company's securities described in Schedule A annexed
hereto (the "Securities"), offered by the Company's Prospectus dated
-----------
, 19 and Prospectus Supplement dated , 19 , receipt of
- ------ -- ----------------- --
copies of which are hereby acknowledged, at a purchase price stated in Schedule
A and on the further terms and conditions set forth in this Agreement. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
----------
, New York, N.Y., at 10:00 A.M. (New York time) on the Delivery Date,
- -------
upon delivery to the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the
<PAGE>
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned as its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this Agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that the
Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Yours very truly,
------------------------------
(Purchaser)
By
----------------------------
------------------------------
(Title)
------------------------------
------------------------------
(Address)
I-2
<PAGE>
Accepted:
AMERICAN HOME PRODUCTS CORPORATION
By
-------------------------------
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
- ---- --------------------- ----------
- --------------------- --------------------- -------------
I-3
<PAGE>
SCHEDULE A
----------
Securities:
- ----------
Principal Amounts or Numbers to be Purchased:
- --------------------------------------------
Purchase Price:
- --------------
Delivery Dates:
- --------------
Exhibit 1(b)
DRAFT
12/7/94
AMERICAN HOME PRODUCTS CORPORATION
$3,500,000,000
Medium-Term Notes
Due from 9 Months to Years from Date of Issue
---
U.S. DISTRIBUTION AGREEMENT
, 199
-------- -- -
[NAMES AND ADDRESSES OF AGENTS]
Dear Sirs:
American Home Products Corporation, a Delaware corporation (the
"Company"), confirms its agreement with each of you with respect to the issue
and sale from time to time by the Company of up to $3,500,000,000 (or the
equivalent thereof in one or more foreign currencies or composite currencies)
aggregate initialoffering price of its medium-term notes due from 9 months to
--
years from date of issue (the "Notes"). The Notes will be issued under an
Indenture dated as of April 10, 1992 between the Company and Chemical Bank (as
successor to Manufacturers Hanover Trust Company), as Trustee (the "Trustee"),
as supplemented by a Supplemental Indenture dated as of October 13, 1992 (the
"Indenture") and will have the maturities, interest rates, redemption
provisions, if any, and other terms as set forth in supplements to the Basic
Prospectus referred to below.
The Company hereby appoints [NAMES OF AGENTS] (individually, an "Agent"
and collectively, the "Agents") as its exclusive agents, subject to Section 12,
for the purpose of soliciting and receiving offers to purchase Notes from the
Company by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, each Agent
agrees to use reasonable efforts to solicit and receive offers to purchase Notes
upon
<PAGE>
terms acceptable to the Company at such times and in such amounts as the
Company shall from time to time specify. In addition, any Agent may also
purchase Notes as principal and, if requested by such Agent, the Company will
enter into a Terms Agreement relating to such sale (a "Terms Agreement") in
accordance with the provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto, as amended
at the Commencement Date (as hereinafter defined), is hereinafter referred to as
the "Registration Statement." The Company proposes to file with the Commission
from time to time, pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"), supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "Prospectus Supplement") specifically relating to Notes, as filed with,
or transmitted for filing to, the Commission pursuant to Rule 424. As used
herein, the terms "Basic Prospectus" and "Prospectus" shall include in each case
the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. Representations and Warranties. The Company represents and warrants
------------------------------
to and agrees with each Agent as of the Commencement Date, as of each date on
which an Agent solicits offers to purchase Notes, as of each date on which the
Company accepts an offer to purchase Notes (including any purchase by an Agent
as principal, pursuant to a Terms Agreement or otherwise), as of each date the
Company issues and delivers Notes and as of each date the Registration Statement
or the Basic Prospectus is amended or supplemented, as follows (it being
understood that such representations, warranties and agreements shall be deemed
to relate to the Registration Statement, the Basic Prospectus and the
Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration
2
<PAGE>
Statement is in effect, and no proceedings for such purpose are pending before
or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective, did not contain, and the
Registration Statement, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply at the time of such
amendment or supplement in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv) the
Prospectus does not contain and, as amended or supplemented, if applicable, will
not contain at the time of such amendment or supplement any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (1) the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to an
Agent furnished to the Company in writing by such Agent expressly for use
therein or (B) to that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee and (2) the
representations and warranties set forth in clauses (iii) and (iv) above, when
made as of the Commencement Date or as of any date on which an Agent solicits
offers to purchase Notes or on which the Company accepts an offer to purchase
Notes, shall be deemed not to cover information concerning an offering of
particular Notes to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that
3
<PAGE>
the failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each Restricted Subsidiary (as defined in the Indenture) of the
Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Terms Agreement has been
duly authorized, executed and delivered by the Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly paid
for by the purchasers thereof, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the Notes, the Indenture
and any applicable Terms Agreement will not contravene any material provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
Restricted Subsidiaries that is material to
4
<PAGE>
the Company and its subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over the
Company or any Restricted Subsidiary, and no consent, approval, authorization
or order of or qualification with any governmental body or agency is required
for the performance by the Company of its obligations under this Agreement, the
Notes, the Indenture and any applicable Terms Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Notes.
(i) There has not occurred any material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(j) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
Restricted Subsidiaries is a party or to which any of the properties of the
Company or any of its Restricted Subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not so
described or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not described or
filed as required.
(k) The Company is not an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
Notwithstanding the foregoing, the representations and warranties set
forth in Section 1(b)(iii) and (iv), (g) (except as to the authorization of the
Notes) and (h), when made as of the Commencement Date, or as of any date on
which an Agent solicits offers to purchase Notes, with respect to any Notes the
payments of principal or interest on which will be determined by reference to
one or more currency exchange rates, commodity prices, equity indices or other
factors, shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission.*
- -------------------------
* This paragraph could be deleted if the Company does not plan to issue indexed
Notes.
5
<PAGE>
2. Solicitations as Agent; Purchases as Principal.
----------------------------------------------
(a) Solicitations as Agent. In connection with an Agent's actions as agent
----------------------
hereunder, such Agent agrees to use reasonable efforts to solicit offers to
purchase Notes upon the terms and conditions set forth in the Prospectus as then
amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon receipt of at least one business
day's prior notice from the Company, the Agents will forthwith suspend
solicitations of offers to purchase Notes from the Company until such time as
the Company has advised the Agents that such solicitation may be resumed. While
such solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c); provided, however, that if the Registration Statement or Prospectus is
-------- -------
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the Notes
or for a change all Agents deem to be immaterial), no Agent shall be required to
resume soliciting offers to purchase Notes until the Company has delivered such
certificates, opinions and letters as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the sale of
each Note resulting from a solicitation made or an offer to purchase received by
such Agent, a commission in the form of a discount from the purchase price of
such Note equal to the percentage set forth below of the purchase price of such
Note:
Term Commission Rate
---- ---------------
From 9 months to less than 1 year . %
From 1 year to less than 18 months . %
From 18 months to less than 2 years . %
From 2 years to less than 3 years . %
From 3 years to less than 4 years . %
From 4 years to less than 5 years . %
From 5 years to less than 6 years . %
From 6 years to less than 7 years . %
From 7 years to less than 10 years . %
From 10 years to less than 15 years . %
From 15 years to and including years . %
--
6
<PAGE>
Each Agent shall communicate to the Company, orally or in writing, each
offer to purchase Notes received by such Agent as agent that in its judgment
should be considered by the Company. The Company shall have the sole right to
accept offers to purchase Notes and may reject any offer in whole or in part.
Each Agent shall have the right to reject any offer to purchase Notes that it
considers to be unacceptable, and any such rejection shall not be deemed a
breach of its agreements contained herein. The procedural details relating to
the issue and delivery of Notes sold by the Agents as agents and the payment
therefor shall be as set forth in the Administrative Procedures (as hereinafter
defined).
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
----------------------
shall be made in accordance with the terms of this Agreement and, if requested
by such Agent, the Company will enter into a Terms Agreement that will provide
for the sale of such Notes to and the purchase thereof by such Agent. Each
Terms Agreement will be substantially in the form of Exhibit A hereto but may
take the form of an exchange of any form of written telecommunication between
such Agent and the Company.
An Agent's commitment to purchase Notes as principal, whether pursuant to
a Terms Agreement or otherwise, shall be deemed to have been made on the basis
of the representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth. Each agreement by an
Agent to purchase Notes as principal (whether or not set forth in a Terms
Agreement) shall specify the principal amount of Notes to be purchased by such
Agent pursuant thereto, the maturity date of such Notes, the price to be paid to
the Company for such Notes, the interest rate and interest rate formula, if any,
applicable to such Notes and any other terms of such Notes. Each such agreement
shall also specify any requirements for officers' certificates, opinions of
counsel and letters from the independent public accountants of the Company
pursuant to Section 4 hereof. A Terms Agreement may also specify certain
provisions relating to the reoffering of such Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of and
payment for such Notes. Unless otherwise specified in a Terms Agreement, the
procedural details relating to the issue and delivery of Notes purchased by an
Agent as principal and the payment therefor shall be as set forth in the
Administrative Procedures (as defined below). Each date of delivery of and
payment for Notes to be purchased by an Agent as principal, whether pursuant to
a Terms Agreement or otherwise, is referred to herein as a "Settlement Date."
7
<PAGE>
(c) Administrative Procedures. The Agents and the Company agree to
-------------------------
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached hereto as
Exhibit B) (the "Administrative Procedures"), as amended from time to time. The
Administrative Procedures may be amended only by written agreement of the
Company and the Agents.
(d) Delivery. The documents required to be delivered by Section 4 of
--------
this Agreement as a condition precedent to the Agents' obligations to begin
soliciting offers to purchase Notes as agents of the Company shall be delivered
at the office of Willkie Farr & Gallagher, counsel for the Agents, not later
than p.m., New York time, on the date hereof, or at such other time and/or
---
place as the Agents and the Company may agree upon in writing, but in no event
later than the day prior to the earlier of (i) the date on which the Agents
begin soliciting offers to purchase Notes and (ii) the first date on which the
Company accepts any offer by an Agent to purchase Notes as principal. The date
of delivery of such documents is referred to herein as the "Commencement Date."
(e) Obligations Several. The Company acknowledges that the obligations
-------------------
of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
----------
(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement or any Terms Agreement, the Company will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration Statement
unless the Company has previously furnished to the Agents copies thereof for
their review and will not file any such proposed supplement or amendment to
which any Agent reasonably objects; provided, however, that (i) the foregoing
-------- -------
requirement shall not apply to any of the Company's periodic filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, copies of which filings the Company will cause to be delivered
to the Agents promptly after being transmitted for filing with the Commission
and (ii) any Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall only be reviewed and approved by the Agent
or Agents offering such Notes. Subject to the foregoing sentence, the Company
will promptly cause each Prospectus Supplement to be filed with or transmitted
for filing to the Commission in accordance with Rule 424(b) under the Securities
Act. The Company will promptly advise the Agents (i) of the filing of any
amendment or supplement to the Basic
8
<PAGE>
Prospectus (except that notice of the filing of an amendment or supplement to
the Basic Prospectus that merely sets forth the terms or a description of
particular Notes shall only be given to the Agent or Agents offering such
Notes), (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Basic
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as possible the
withdrawal thereof. If the Basic Prospectus is amended or supplemented as a
result of the filing under the Exchange Act of any document incorporated by
reference in the Prospectus, no Agent shall be obligated to solicit offers to
purchase Notes if it is not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is required
to be delivered under the Securities Act, any event occurs or condition exists
as a result of which the Prospectus, as then amended or supplemented, would
include an untrue statement of a material fact, or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
when the Prospectus, as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in the opinion of any Agent (which opinion
shall be immediately expressed to the Company) or in the opinion of the Company,
it is necessary at any time to amend or supplement the Prospectus, as then
amended or supplemented, to comply with applicable law, the Company will
immediately notify the Agents by telephone (with confirmation in writing) to
suspend solicitation of offers to purchase Notes and, if so notified by the
Company, the Agents shall forthwith suspend such solicitation and cease using
the Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise the Agents promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to each Agent, that will correct such statement or
omission or effect
9
<PAGE>
such compliance and will supply such amended or supplemented Prospectus to the
Agents in such quantities as they may reasonably request. If all documents,
certificates, opinions and letters furnished to the Agents pursuant to paragraph
(f) below and Sections 5(a), 5(b) and 5(c) in connection with the preparation
and filing of such amendment or supplement are satisfactory in all respects to
each Agent, upon the filing with the Commission of such amendment or supplement
to the Prospectus or upon the effectiveness of an amendment to the Registration
Statement, the Agents will resume the solicitation of offers to purchase Notes
hereunder. Notwithstanding any other provision of this Section 3(b), until the
distribution of any Notes an Agent may own as principal has been completed, if
any event described above in this paragraph (b) occurs, the Company will, at its
own expense, forthwith prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
such Agent, will supply such amended or supplemented Prospectus to such Agent in
such quantities as it may reasonably request and shall furnish to such Agent
pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such documents,
certificates, opinions and letters as such Agent may request in connection with
the preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security holders
and to the Agents as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve-month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158 under the Securities Act)
of the Registration Statement with respect to each sale of Notes. If such
fiscal quarter is the last fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after the close
of the period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish to each Agent, without charge, a signed
copy of the Registration Statement, including exhibits and all amendments
thereto, and as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto as such Agent may
reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such
10
<PAGE>
jurisdictions as the Agents shall reasonably request and to maintain such
qualifications for as long as the Agents shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish to the
Agents such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from time to time
reasonably request.
(g) During the term of this Agreement, the Company shall notify the
Agents promptly in writing of any downgrading, or of its receipt of any notice
of any intended or potential downgrading or of any review for possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is consummated,
pay all expenses incident to the performance of its obligations under this
Agreement and any Terms Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and supplements
thereto, (ii) the preparation, issuance and delivery of the Notes, (iii) the
fees and disbursements of the Company's counsel and accountants and of the
Trustee and its counsel, (iv) the qualification of the Notes under securities or
Blue Sky laws in accordance with the provisions of Section 3(e), including
filing fees and the fees and disbursements of counsel for the Agents in
connection therewith and in connection with the preparation of any Blue Sky or
Legal Investment Memoranda, (v) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Basic Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Agents of copies of the Indenture
and any Blue Sky or Legal Investment Memoranda, (vii) any fees charged by rating
agencies for the rating of the Notes, (viii) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc., (ix) the fees and disbursements of counsel for the Agents
incurred in connection with the offering and sale of the Notes, including any
opinions to be rendered by such counsel hereunder, and (x) any out-of-pocket
expenses incurred by the
11
<PAGE>
Agents; provided that any advertising expenses incurred by the Agents shall have
--------
been approved by the Company.
(i) Between the date of any agreement by an Agent to purchase Notes as
principal and the Settlement Date with respect to such agreement, the Company
will not, without such Agent's prior consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
such Notes (other than (i) the Notes that are to be sold pursuant to such
agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in such agreement.
4. Conditions of the Obligations of the Agents. Each Agent's obligation
-------------------------------------------
to solicit offers to purchase Notes as agent of the Company, each Agent's
obligation to purchase Notes as principal pursuant to any Terms Agreement or
otherwise and the obligation of any other purchaser to purchase Notes will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of the Company's officers made
in each certificate furnished pursuant to the provisions hereof and to the
performance and observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed (in the case of an Agent's
obligation to solicit offers to purchase Notes, at the time of such
solicitation, and, in the case of an Agent's or any other purchaser's obligation
to purchase Notes, at the time the Company accepts the offer to purchase such
Notes and at the time of purchase) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change in the condition, financial
or otherwise, or in the earnings, business or operations, of the Company and
its subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time such
offer to purchase was made, that, in the reasonable judgment of the relevant
Agent, is materially adverse and that makes it, in the reasonable judgment of
such Agent, impracticable to market the Notes on the terms and in the manner
contemplated by the Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case
12
<PAGE>
may be, the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (B) suspension
of trading of any securities of the Company on any exchange or in any
over-the-counter market, (C) declaration of a general moratorium on commercial
banking activities in New York by either Federal or New York State authorities
or (D) any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the reasonable judgment of the
relevant Agent, is materially adverse and, in the case of any of the events
described in clauses (A) through (D), such event, singly or together with any
other such event, makes it, in the reasonable judgment of such Agent,
impracticable to market the Notes on the terms and in the manner contemplated
by the Prospectus, as amended or supplemented at the time of such solicitation
or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or
(iii) above, as disclosed to the relevant Agent in writing by the Company prior
to such solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was made or (B) unless in
each case described in (ii) above, the relevant event shall have occurred and
been known to the relevant Agent before such solicitation or, in the case of a
purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any agreement by an
Agent to purchase Notes as principal, on the corresponding Settlement Date, the
relevant Agents shall have received:
(i) The opinion, dated as of such date, of Louis L. Hoynes, Jr., Senior
Vice President and General Counsel of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing as
a corporation in good standing under
13
<PAGE>
the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus, as then amended or supplemented, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken
as a whole;
(B) each Restricted Subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business as
described in the Prospectus, as then amended or supplemented, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a
whole;
(C) each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company;
(D) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(E) the Notes have been duly authorized and, if executed and
authenticated in accordance with the Indenture and delivered to and duly
paid for by the purchasers thereof on the date of such opinion, would be
entitled to the benefits of the Indenture and would be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited
by bankruptcy,
14
<PAGE>
insolvency or similar laws affecting creditors' rights generally and (ii)
rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(F) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Notes, the Indenture and any applicable Terms Agreement will not
contravene any material provision of applicable law or the certificate of
incorporation or by-laws of the Company, or any agreement or other
instrument binding upon the Company or any of its Restricted Subsidiaries
that is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Restricted Subsidiary,
and no consent, approval, authorization or order of or qualification with
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the Indenture
and any applicable Terms Agreement, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the
offer and sale of the Notes;
(G) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions ["Description of the Notes,"]
"Description of Debt Securities," "Plan of Distribution" and
------------
, (2) in the Registration Statement under Item 15, (3) in "Item 3
-------
- Legal Proceedings" of the Company's most recent annual report on Form
10-K incorporated by reference in the Prospectus and (4) in "Item 1 -
Legal Proceedings" of Part II of the Company's quarterly reports on Form
10-Q, if any, filed since such annual report, in each case insofar as
such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and
fairly summarize the matters referred to therein;
(H) there are no legal or governmental proceedings pending or, to
the knowledge of such counsel, threatened to which the Company or any of
its Restricted Subsidiaries is a party or to which any of the properties
of the Company or any of its Restricted Subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus,
as then amended or supplemented, and are not so described or of any
statutes,
15
<PAGE>
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus, as then
amended or supplemented, or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(I) such counsel is of the opinion ascribed to him in the
Prospectus, as then amended or supplemented, under the caption
"[Taxation]", if any;
(J) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended; and
(K) such counsel (1) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus, as then amended or supplemented (except for financial
information, statements and schedules included therein as to which such
counsel need not express any opinion), complied when so filed as to form
in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (2) believes that (except
for financial information, statements and schedules as to which such
counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 heretofore referred
to) the Registration Statement, as then amended, if applicable, when it
became effective 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, (3) is of the
opinion that the Registration Statement and Prospectus, as then amended
or supplemented, if applicable (except for financial information,
statements and schedules included therein as to which such counsel need
not express any opinion) as of the date such opinion is delivered, comply
as to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (4)
believes that (except for financial information, statements and schedules
as to which such counsel need not express any belief) the Prospectus, as
then amended or supplemented, if applicable, as of the date such opinion
is delivered does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that
--------
16
<PAGE>
in the case of an opinion delivered on the Commencement Date or pursuant
to Section 5(b), the opinion and belief set forth in clauses (3) and (4)
above shall be deemed not to cover information concerning an offering of
particular Notes to the extent such information will be set forth in a
supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Willkie Farr &
Gallagher, counsel for the Agents, covering the matters in subparagraphs
(C), (D), (E) and (G) (with respect to statements in the Prospectus, as
then amended or supplemented, under the captions ["Description of the
Notes,"] "Description of Debt Securities" and "Plan of Distribution"),
(J) and clauses (2), (3) and (4) of subparagraph (K) in paragraph (b)(i)
above.
Notwithstanding the foregoing, the opinions described in subparagraphs
(E) (except as to the authorization of the Notes), (F), (G)(1) and (K)(3) and
(4) of paragraph (b)(i) above, when contained in an opinion delivered on the
Commencement Date or pursuant to Section 5(b), shall be deemed not to address
the application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission to
Notes the payments of principal or interest on which will be determined by
reference to one or more currency exchange rates, commodity prices, equity
indices or other factors.*
With respect to clauses (2), (3) and (4) of subparagraph (K) of paragraph
(b)(i) above, Willkie Farr & Gallagher may state that their opinion and belief
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and discussion
of the contents thereof (including documents incorporated therein by reference),
but are without independent check or verification, except as specified.
The opinion of counsel to the Company described in paragraph (b)(i) above
shall be rendered to you at the request of the Company and shall so state
therein. In giving such opinion, Louis L. Hoynes, Jr. may rely, to the extent
stated in his opinion, upon such other opinions as he deems necessary, which
opinions are in form and substance reasonably satisfactory to counsel for the
Underwriters, provided that Louis L. Hoynes, Jr. furnish a copy thereof to the
Underwriters and state that such opinions are satisfactory in form and scope and
that the Underwriters and counsel for the Underwriters are entitled to rely
thereon.
17
<PAGE>
- ------------------------
* Delete if the last paragraph of Section 1 is deleted.
(c) On the Commencement Date and, if called for by any agreement by an
Agent to purchase Notes as principal, on
the corresponding Settlement Date, the relevant Agents shall have received a
certificate, dated such Commencement Date or Settlement Date, as the case may
be, signed by an executive officer of the Company to the effect set forth in
subparagraph (a)(iii) above and to the effect that the representations and
warranties of the Company contained herein are true and correct as of such date
and that the Company has complied in all material respects with all of the
agreements and satisfied in all material respects all of the conditions on its
part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any agreement by an
Agent to purchase Notes as principal, on the corresponding Settlement Date, the
Company's independent
public accountants shall have furnished to the relevant Agents a letter or
letters, dated as of the Commencement Date or such Settlement Date, as the case
may be, in form and substance satisfactory to such Agents containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
------------------------------------
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement providing solely for a change in the interest rates,
redemption provisions, amortization schedules or maturities offered on the Notes
or for a change all Agents deem to be immaterial), the Company will deliver or
cause to be delivered forthwith to each Agent a certificate signed by an
executive officer of the Company, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to the Agents,
of the same tenor as the certificate referred to in Section 4(c) relating to the
18
<PAGE>
Registration Statement or the Prospectus as amended or supplemented to the time
of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company will furnish or cause to be furnished forthwith to each Agent
a written opinion of counsel for the Company. Any such opinion shall be dated
the date of such amendment or supplement, as the case may be, shall be in a form
satisfactory to the Agents and shall be of the same tenor as the opinion
referred to in Section 4(b)(i), but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion. In lieu of such opinion, counsel last furnishing such an
opinion to an Agent may furnish to each Agent a letter to the effect that such
Agent may rely on such last opinion to the same extent as though it were dated
the date of such letter (except that statements in such last opinion will be
deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent public accountants forthwith
to furnish each Agent with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to the Agents, of the same
tenor as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by such Agent or any such controlling person in
connection with investigating or defending any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or in any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
19
<PAGE>
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to such
Agent furnished to the Company in writing by such Agent expressly for use
therein.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the Registration Statement
or the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
conflicting interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by [ ] or, if [ ] is not an
indemnified party and is not reasonably likely to become an indemnified party,
by the Agents that are indemnified parties, in the case of parties indemnified
pursuant to paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph
20
<PAGE>
(b) above. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of this
Section 6 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages or liabilities referred to therein in connection
with any offering of Notes, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Agent on the other hand from the offering of such Notes or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and each Agent on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and each Agent on the other hand in connection
with the offering of such Notes shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of such Notes (before
deducting expenses) received by the Company bear to the total discounts and
commissions received by each Agent in respect thereof. The relative fault of
the Company on the one hand and of each Agent on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by such Agent
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. Each Agent's
obligation to contribute pursuant to this Section 6 shall be several (in the
proportion that the principal amount of the Notes the sale of
21
<PAGE>
which by or through such Agent gave rise to such losses, claims, damages or
liabilities bears to the aggregate principal amount of the Notes the sale of
which by or through any Agent gave rise to such losses, claims, damages or
liabilities) and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro rata
--- ----
allocation (even if the Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes referred to in paragraph (d)
above that were offered and sold to the public through such Agent exceeds the
amount of any damages that such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified party
at law or in equity.
7. Position of the Agents. In acting under this Agreement and in
----------------------
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent as principal), each Agent is acting solely as agent of the Company and
does not assume any obligation towards or relationship of agency or trust with
any purchaser of Notes. An Agent shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase Notes
has been solicited by such Agent and accepted by the Company, but such Agent
shall not have any liability to the Company in the event any such purchase is
not consummated for any reason. If the Company shall default in its obligations
to deliver Notes to a purchaser whose offer it has accepted, the Company shall
hold the relevant Agent harmless against any loss, claim, damage or liability
arising from or as a result of such default and shall, in particular, pay to
such Agent the commission it would have received had such sale been consummated.
22
<PAGE>
8. Termination. This Agreement may be terminated at any time by the
-----------
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any agreement by an Agent to purchase Notes as
principal, and the termination of any such agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), Section 2(e), the last sentence of
Section 3(b) and Sections 3(c), 3(h), 6, 7, 9, 11 and 14 shall survive; provided
--------
that if at the time of termination an offer to purchase Notes has been accepted
by the Company but the time of delivery to the purchaser or its agent of such
Notes has not occurred, the provisions of Sections 2(b), 2(c), 3(a), 3(e), 3(f),
3(g), 3(i), 4 and 5 shall also survive until such delivery has been made.
9. Representations and Indemnities to Survive. The respective indemnity
------------------------------------------
and contribution agreements, representations, warranties and other statements of
the Company, its officers and the Agents set forth in or made pursuant to this
Agreement or any agreement by an Agent to purchase Notes as principal will
remain in full force and effect, regardless of any termination of this Agreement
or any such agreement, any investigation made by or on behalf of an Agent or the
Company or any of the officers, directors or controlling persons referred to in
Section 6 and delivery of and payment for the Notes.
10. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to [ADD NAMES OF AGENTS], will be
mailed, delivered or facsimiled and confirmed to [ADD ADDRESSES AND FACSIMILE
NUMBERS OF AGENTS] or, if sent to the Company, will be mailed, delivered or
facsimiled and confirmed to the Company at Five Giralda Farms, Madison, New
Jersey 07940, Attention: Treasurer (facsimile number: (201) 660-5360).
11. Successors. This Agreement and any Terms Agreement will inure to
----------
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (to the extent expressly provided in
Section 4), and no other person will have any right or obligation hereunder.
23
<PAGE>
12. Amendments. This Agreement may be amended or supplemented if, but
----------
only if, such amendment or supplement is in writing and is signed by the Company
and each Agent;
provided that the Company may from time to time, on seven days' prior written
- --------
notice to the Agents but without requiring the consent of any Agent, amend this
Agreement to add as a party hereto one or more additional firms registered under
the Exchange Act, whereupon each such firm shall become an Agent hereunder on
the same terms and conditions as the other Agents that are parties hereto. The
Agents shall sign any amendment or supplement giving effect to the addition of
any such firm as an Agent under this Agreement.
13. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement will be governed by and construed in
--------------
accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement have been
--------
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
AMERICAN HOME PRODUCTS CORPORATION
By
-------------------------------
Title:
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
[ADD SIGNATURE BLOCKS FOR
AGENTS]
24
<PAGE>
EXHIBIT A
AMERICAN HOME PRODUCTS CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
, 19
----------------- --
American Home Products Corporation
Five Giralda Farms,
Madison, New Jersey 07940
Attention:
Re: Distribution Agreement dated , 19
------ -- --
(the "Distribution Agreement")
----------------------------------------------
We agree to purchase your Medium-Term Notes having the following terms:
[We agree to purchase, severally and not jointly, the principal amount of
Notes set forth below opposite our names:
Principal Amount
Name of Notes
---- ----------------
[Insert syndicate list]
Total . . . . $
---------------
The Notes shall have the following terms:]*
- -------------------------
* Delete if the transaction will not be syndicated.
<PAGE>
All Notes: Fixed Rate Notes: Floating Rate Notes:
--------- ---------------- -------------------
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability Index maturity:
of modified
Price to public: payment upon Spread:
acceleration:
Settlement date Spread multiplier:
and time: If yes, state
issue price: Alternate rate
Place of event spread:
delivery: Amortization
schedule: Initial interest
Specified rate:
currency:
Initial interest
Maturity date: reset date:
Initial accrual Interest reset
period OID: dates:
Total amount Interest reset
of OID: period:
Original yield Maximum interest
to maturity: rate:
Optional repayment Minimum interest
date(s): rate:
Optional redemption Interest payment
date(s): period:
Initial redemption Interest payment
date: dates:
Initial redemption Calculation agent:
percentage:
Annual redemption
percentage
decrease:
Other terms:
A-2
<PAGE>
The provisions of Sections 1, 2(b), 2(c), 3 through 6, 9, 10, 11 and 14
of the Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if set
forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as may specify, to purchase the Notes which such
-------------
defaulting Agent or Agents agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Notes that any Agent has
--------
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or
Agents shall fail or refuse to purchase Notes and the aggregate amount of Notes
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Notes to be purchased on such date, and arrangements
satisfactory to and the Company for the purchase of such Notes are
-----------
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Agent or the Company. In
any such case, either or the Company shall have the right to
-----------
postpone the Settlement Date but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Agent from
liability in respect of any default of such Agent under this Agreement.]*
This Agreement is subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of
Sections 3(h), 6, 9, 11 and
- -------------------------
* Delete if the transaction will not be syndicated.
A-3
<PAGE>
14 of the Distribution Agreement shall survive for the purposes of this
Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Distribution Agreement will be required:
------
.
- --------
[NAME(S) OF RELEVANT AGENT(S)]
By
-------------------------------
Title:
Accepted:
AMERICAN HOME PRODUCTS CORPORATION
By
-------------------------
Title:
A-4
<PAGE>
EXHIBIT B
AMERICAN HOME PRODUCTS CORPORATION
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
--------------------------------
Explained below are the administrative procedures and specific terms of
the offering of Medium-Term Notes (the "Notes"), on a continuous basis by
American Home Products Corporation (the "Company") pursuant to the Distribution
Agreement, dated as of , 199 (the "Distribution Agreement") among the
-------- -
Company and [NAMES OF AGENTS] (the "Agents"). The Notes will be issued under an
Indenture dated as of April 10, 1992 between the Company and Chemical Bank (as
successor to Manufacturers Hanover Trust Company), as Trustee (the "Trustee"),
as supplemented by a Supplemental Indenture dated as of October 13, 1992 (the
"Indenture"). In the Distribution Agreement, the Agents have agreed to use
reasonable efforts to solicit purchases of the Notes, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
sold through an Agent, as agent of the Company. An Agent, as principal, may
also purchase Notes for its own account, and if requested by such Agent, the
Company and such Agent will enter into a terms agreement (a "Terms Agreement"),
as contemplated by the Distribution Agreement. The administrative procedures
explained below will govern the issuance and settlement of any Notes purchased
by an Agent, as principal, unless otherwise specified in the applicable Terms
Agreement.
The Trustee will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for the Notes and will perform the duties specified
herein. Each Note will be represented by either a Global Security (as defined
below) delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the holder thereof or a person designated
by such holder (a "Certificated Note"). Except as set forth in the Indenture,
an owner of a Book-Entry Note will not be entitled to receive a Certificated
Note.
<PAGE>
Book-Entry Notes, which may be payable only in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures. Certificated Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof. Unless otherwise defined
herein, terms defined in the Indenture, the Notes or any prospectus supplement
relating to the Notes shall be used herein as therein defined.
The Company will advise the Agents in writing of the employees of the
Company with whom the Agents are to communicate regarding offers to purchase
Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its respective obligations under a Letter of Representation from
the Company and the Trustee to DTC, dated as of , 199 , and a
-------- -
Medium-Term Note Certificate Agreement between the Trustee and DTC, dated as of
, 199 (the "MTN Certificate Agreement"), and its obligations as a
- ------ -
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of "settlement" (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company will
issue a single global security in fully registered form
without coupons (a "Global Security") representing up to
U.S. $150,000,000 principal amount of all such Notes that
have the same Original Issue Date, Maturity Date and other
terms. Each Global Security will be dated and issued as
of the date of its authentication by the Trustee. Each
Global Security will bear an "Interest Accrual Date,"
which will be (i) with respect to an original Global
Security (or any portion thereof), its original issuance
date and (ii) with respect to any Global Security (or any
portion thereof) issued subsequently upon exchange of a
Global Security, or in lieu of a destroyed, lost or
stolen Global Security, the most recent Interest Payment
Date to which interest has
B-2
<PAGE>
been paid or duly provided for on the predecessor Global
Security (or if no such payment or provision has been
made, the original issuance date of the predecessor Global
Security), regardless of the date of authentication of
such subsequently issued Global Security. Book-Entry
Notes may be payable only in U.S. dollars. No Global
Security will represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of U.S. $100,000 or any amount in excess
thereof that is an integral multiple of U.S. $1,000.
Global Securities will be denominated in principal amounts
not in excess of U.S. $150,000,000. If one or more
Book-Entry Notes having an aggregate principal amount in
excess of $150,000,000 would, but for the preceding
sentence, be represented by a single Global Security, then
one Global Security will be issued to represent each U.S.
$150,000,000 principal amount of such Book-Entry Note or
Notes and an additional Global Security will be issued to
represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the
Global Securities representing such Book-Entry Note or
Notes shall be assigned the same CUSIP number.
Preparation If any offer to purchase a Book-
of Pricing Entry Note is accepted by or on
Supplement: behalf of the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the terms
of such Note. The Company (i) will arrange to file 10
copies of such Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule 424(b)
under the Securities Act and (ii) will, as soon
as possible and in any event not later than the date on
which such Pricing Supplement is filed with the
Commission, deliver the number of copies of such Pricing
Supplement to the relevant Agent as such Agent shall
request.
B-3
<PAGE>
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately available funds
in payment for a Book-Entry Note and the authentication
and issuance of the Global Security representing such Note
shall constitute "settlement" with respect to such Note.
All offers accepted by the Company will be settled on the
fifth Business Day next succeeding the date of acceptance
pursuant to the timetable for settlement set forth below,
unless the Company and the purchaser agree to settlement
on another day, which shall be no earlier than the next
Business Day.
Settlement Settlement Procedures with regard
Procedures: to each Book-Entry Note sold by the Company to or through
an Agent (unless otherwise specified pursuant to a Terms
Agreement) shall be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Book-Entry Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry Note, the
Interest Rate, whether such Note will pay
interest annually or semiannually and whether
such Note is an Amortizing Note, and, if so, the
amortization schedule, or, in the case of a
Floating Rate Book-Entry Note, the Initial
Interest Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
B-4
<PAGE>
Calculation Agent, Base Rate, Index Maturity,
Interest Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
4. Redemption or repayment provisions (if any).
5. Settlement date and time (Original Issue Date).
6. Interest Accrual Date.
7. Price.
8. Agent's commission (if any) determined as
provided in the Distribution Agreement.
9. Whether the Note is an Original Issue Discount
Note (an "OID Note"), and if it is an OID Note,
the total amount of OID, the yield to maturity,
the initial accrual period OID and the
applicability of Modified Payment upon
Acceleration (and, if so, the Issue Price).
10. Whether the Note is a PERLS Note, and if it is a
PERLS Note, the Denominated Currency, the
Indexed Currency or Currencies, the Payment
Currency, the Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount of
each Indexed Currency, the Aggregate Fixed
Amount of each Indexed Currency and the
Authorized Denominations (if other than U.S.
dollars).
11. Whether the Note is a Renewable Note, and if it
is a Renewable
B-5
<PAGE>
Note, the Initial Maturity Date and the Final
Maturity Date.
12. Whether the Company has the option to extend the
Original Maturity Date of the Note, and, if so,
the Final Maturity Date of such Note.
13. Whether the Company has the option to reset the
Interest Rate, the Spread or the Spread
Multiplier of the Note.
14. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth
in Settlement Procedure "A" above. The Trustee will
then assign a CUSIP number to the Global Security
representing such Note and will notify the Company
and the relevant Agent of such CUSIP number by
telephone as soon as practicable.
C. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the
relevant Agent and Standard & Poor's Corporation:
1. The information set forth in Settlement
Procedure "A."
2. The Initial Interest Payment Date for such Note,
the number of days by which such date succeeds
the related DTC Record Date (which in the case
of Floating Rate Notes which reset daily or
weekly, shall be the date five calendar days
immediately preceding the applicable Interest
Payment Date and, in the case of all other
Notes, shall be the Record Date
B-6
<PAGE>
as defined in the Note) and, if known, the
amount of interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at
such time).
5. Whether such Note is an Amortizing Note (by an
appropriate notation in the comments field of
DTC's Participant Terminal System).
6. The number of participant accounts to be
maintained by DTC on behalf of the relevant
Agent and the Trustee.
D. The Trustee will complete and authenticate the Global
Security representing such Note.
E. DTC will credit such Note to the Trustee's
participant account at DTC.
F. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to the relevant Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to the price
of such Note less such Agent's commission (if any).
The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC
that (a) the Global Security representing such
Book-Entry Note has been issued and authenticated and
(b) the Trustee is holding such
B-7
<PAGE>
Global Security pursuant to the MTN Certificate
Agreement.
G. Unless the relevant Agent is the end purchaser of
such Note, such Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to such
Agent's participant account and credit such Note to
the participant accounts of the Participants with
respect to such Note and (ii) to debit the settlement
accounts of such Participants and credit the
settlement account of such Agent for an amount equal
to the price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. The Trustee will credit to the account of the Company
maintained at [NAME OF ISSUER'S BANK], New York, New
York, in immediately available funds, the amount
transferred to the Trustee in accordance with
Settlement Procedure "F."
J. Unless the relevant Agent is the end purchaser of
such Note, such Agent will confirm the purchase of
such Note to the purchaser either by transmitting to
the Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a written
confirmation to such purchaser.
K. Monthly, the Trustee will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth a brief description
B-8
<PAGE>
of any sales of which the Company has advised the
Trustee that have not yet been settled.
Settlement For sales by the Company of Book-
Procedures Entry Notes to or through an Agent
Timetable: (unless otherwise specified pursuant to a Terms Agreement)
for settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "J" set forth
above shall be completed as soon as possible but not later
than the respective times in New York City set forth
below:
Settlement
Procedure Time
---------- ----
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A," "B" and
"C" shall be completed as soon as practicable but no
later than 11:00 A.M., 12:00 Noon and 2:00 P.M.,
respectively, on the first Business Day after the sale
date. If the Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time that
Settlement Procedure "A" is completed, Settlement
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 12:00
Noon and 2:00 P.M., respectively, on the first Business
Day before the settlement date. Settlement Procedure
"H" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in
effect on the settlement date.
B-9
<PAGE>
If settlement of a Book-Entry Note is rescheduled or
cancelled, the Trustee, after receiving notice from the
Company or the relevant Agent, will deliver to DTC,
through DTC's Participant Terminal System, a
cancellation message to such effect by no later than
2:00 P.M. on the Business Day immediately preceding the
scheduled settlement date.
Failure If the Trustee fails to enter an SDFS
to Settle: deliver order with respect to a Book-Entry Note pursuant
to Settlement Procedure "F," the Trustee may deliver to
DTC, through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC to
debit such Note to the Trustee's participant account,
provided that the Trustee's participant account contains
a principal amount of the Global Security representing
such Note that is at least equal to the principal amount
to be debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes represented by
a Global Security, the Trustee will mark such Global
Security "cancelled," make appropriate entries in the
Trustee's records and send such cancelled Global
Security to the Company. The CUSIP number assigned to
such Global Security shall, in accordance with the
procedures of the CUSIP Service Bureau of Standard &
Poor's Corporation, be cancelled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the Book-Entry
Notes represented by a Global Security, the Trustee will
exchange such Global Security for two Global Securities,
one of which shall represent such Book-Entry Note or
Notes and shall be cancelled immediately after issuance
and the other of which shall represent the remaining
Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP
number of the surrendered Global Security.
B-10
<PAGE>
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting on
behalf of such purchaser), such Participants and, in
turn, the relevant Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F" and
"G," respectively. Thereafter, the Trustee will deliver
the withdrawal message and take the related actions
described in the preceding paragraph.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may take
any actions in accordance with its SDFS operating
procedures then in effect.
In the event of a failure to settle with respect to one
or more, but not all, of the Book-Entry Notes to have
been represented by a Global Security, the Trustee will
provide, in accordance with Settlement Procedures "D"
and "F," for the authentication and issuance of a Global
Security representing the Book-Entry Notes to be
represented by such Global Security and will make
appropriate entries in its records.
B-11
<PAGE>
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the Certificated
Notes.
Issuance: Each Certificated Note will be dated and issued as of
the date of its authentication by the Trustee. Each
Certificated Note will bear an Original Issue Date,
which will be (i) with respect to an original
Certificated Note (or any portion thereof), its original
issuance date (which will be the settlement date) and
(ii) with respect to any Certificated Note (or portion
thereof) issued subsequently upon transfer or exchange
of a Certificated Note or in lieu of a destroyed, lost
or stolen Certificated Note, the original issuance date
of the predecessor Certificated Note, regardless of the
date of authentication of such subsequently issued
Certificated Note.
Preparation If any offer to purchase a Certi-
of Pricing ficated Note is accepted by or on
Supplement: behalf of the Company, the Company will prepare a
Pricing Supplement reflecting the terms of such Note.
The Company (i) will arrange to file 10 copies of such
Pricing Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b) under the
Securities Act and (ii) will, as soon as possible and in
any event not later than the date on which such Pricing
Supplement is filed with the Commission, deliver the
number of copies of such Pricing Supplement to the
relevant Agent as such Agent shall request.
In each instance that a Pricing Supplement is prepared,
the relevant Agent will affix the Pricing Supplement to
Prospectuses prior to their use. Outdated Pricing
Supplements, and the Prospectuses to which they are
attached (other than those retained for files), will be
destroyed.
B-12
<PAGE>
Settlement: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated Note
delivered to the relevant Agent and such Agent's
delivery of such Note against receipt of immediately
available funds shall constitute "settlement" with
respect to such Note. All offers accepted by the
Company will be settled on the fifth Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on another
date, which date shall be no earlier than the next
Business Day.
Settlement Settlement Procedures with regard to
Procedures: each Certificated Note sold by the Company to or through
an Agent (unless otherwise specified pursuant to a Terms
Agreement) shall be as follows:
A. The relevant Agent will advise the Company by
telephone that such Note is a Certificated Note and
of the following settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address
for payment of principal and interest.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated Note,
the Interest Rate, whether such Note will pay
interest annually or semiannually and whether
such
B-13
<PAGE>
Note is an Amortizing Note and, if so, the
amortization schedule, or, in the case of a
Floating Rate Certificated Note, the Initial
Interest Rate (if known at such time),
Interest Payment Date(s), Interest Payment
Period, Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period, Initial
Interest Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum Interest Rate
(if any) and the Alternate Rate Event Spread
(if any).
7. Redemption or repayment provisions (if any).
8. Settlement date and time (Original Issue
Date).
9. Interest Accrual Date.
10. Price.
11. Agent's commission (if any) determined as
provided in the Distribution Agreement.
12. Denominations.
13. Specified Currency.
14. Whether the Note is an OID Note, and if it is
an OID Note, the total amount of OID, the
yield to maturity, the initial accrual period
OID and the applicability of Modified Payment
upon Acceleration (and if so, the Issue
Price).
15. Whether the Note is a PERLS Note, and if it is
a PERLS Note, the Denominated Currency, the
Indexed Currency or
B-14
<PAGE>
Currencies, the Payment Currency, the Exchange
Rate Agent, the Reference Dealers, the Face
Amount, the Fixed Amount of each Indexed
Currency, the Aggregate Fixed Amount of each
Indexed Currency and the Authorized
Denominations (if other than U.S. dollars).
16. Whether the Note is a Renewable Note, and if
it is a Renewable Note, the Initial Maturity
Date and the Final Maturity Date.
17. Whether the Company has the option to extend
the Original Maturity Date of the Note, and,
if so, the Final Maturity Date of such Note.
18. Whether the Company has the option to reset
the Interest Rate, the Spread or the Spread
Multiplier of the Note.
19. Any other applicable terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which
packet will contain the following documents in
forms that have been approved by the Company, the
relevant Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
B-15
<PAGE>
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the relevant
Agent, and such Agent will acknowledge receipt of
the Note by stamping or otherwise marking Stub One
and returning it to the Trustee. Such delivery
will be made only against such acknowledgment of
receipt and evidence that instructions have been
given by such Agent for payment to the account of
the Company at [NAME OF ISSUER'S BANK], New York,
New York, or to such other account as the Company
shall have specified to such Agent and the Trustee,
in immediately available funds, of an amount equal
to the price of such Note less such Agent's
commission (if any). In the event that the
instructions given by such Agent for payment to the
account of the Company are revoked, the Company
will, as promptly as possible, wire transfer to the
account of such Agent an amount of immediately
available funds equal to the amount of such payment
made.
E. Unless the relevant Agent is the end purchaser of
such Note, such Agent will deliver such Note (with
confirmation) to the customer against payment in
immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Note
by retaining Stub Two.
F. The Trustee will send Stub Three to the Company by
first-class mail. Monthly, the Trustee will also
send to the Company a statement setting forth the
principal amount of the
B-16
<PAGE>
Notes outstanding as of that date under the
Indenture and setting forth a brief description of
any sales of which the Company has advised the
Trustee that have not yet been settled.
Settlement For sales by the Company of Certifi-
Procedures cated Notes to or through an Agent
Timetable: (unless otherwise specified pursuant to a Terms
Agreement), Settlement Procedures "A" through "F" set
forth above shall be completed on or before the
respective times in New York City set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on day before
settlement date
B 3:00 P.M. on day before
settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure If a purchaser fails to accept
to Settle: delivery of and make payment for any Certificated Note,
the relevant Agent will notify the Company and the
Trustee by telephone and return such Note to the
Trustee. Upon receipt of such notice, the Company will
immediately wire transfer to the account of such Agent
an amount equal to the price of such Note less such
Agent's commission in respect of such Note (if any).
Such wire transfer will be made on the settlement date,
if possible, and in any event not later than the
Business Day following the settlement date. If the
failure shall have occurred for any reason other than a
default by such Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, then the Company will reimburse such Agent or
the Trustee, as appropriate, on an equitable basis for
its loss of the use of the funds during the period when
B-17
<PAGE>
they were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which such failure occurred, the Trustee will
mark such Note "cancelled," make appropriate entries in
the Trustee's records and send such Note to the Company.
B-18
Exhibit 4(a)
Conformed Copy
--------------
================================================================================
AMERICAN HOME PRODUCTS CORPORATION
AND
MANUFACTURERS HANOVER TRUST COMPANY, Trustee
Indenture
Dated as of April 10, 1992
----------
================================================================================
<PAGE>
CROSS REFERENCE SHEET*
----------
Between
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
April 10, 1992 between AMERICAN HOME PRODUCTS CORPORATION and MANUFACTURERS
HANOVER TRUST COMPANY, Trustee:
Section of the Act Section of Indenture
- ------------------ --------------------
310(a)(1) and (2)................ 6.9
310(a)(3) and (4)................ Inapplicable
310(b)........................... 6.8 and 6.10(a), (b) and (d)
310(c)........................... Inapplicable
311(a)........................... 6.13(a) and (c)(1) and (2)
311(b)........................... 6.13(b)
311(c)........................... Inapplicable
312(a)........................... 4.1 and 4.2(a)
312(b)........................... 4.2(a) and (b)(i) and (ii)
312(c)........................... 4.2(c)
313(a)........................... 4.4(a)(i), (ii), (iii), (iv),(v)
and (vi)
313(b)(1)........................ Inapplicable
313(b)(2)........................ 4.4
313(c)........................... 4.4
313(d)........................... 4.4
314(a)........................... 4.3
314(b)........................... Inapplicable
314(c)(1) and (2)................ 11.5
314(c)(3)........................ Inapplicable
314(d)........................... Inapplicable
314(e)........................... 11.5
314(f)........................... Inapplicable
315(a), (c) and (d).............. 6.1
315(b)........................... 5.11
315(e)........................... 5.12
316(a)(1)........................ 5.9
316(a)(2)........................ Not required
316(a) (last sentence)........... 7.4
316(b)........................... 5.7
317(a)........................... 5.2
317(b)........................... 3.4(a) and (b)
318(a)........................... 11.7
- ----------
* This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
----------
Page
----
PARTIES.................................................. 1
RECITALS................................................. 1
ARTICLE ONE
DEFINITIONS
SECTION 1.1.Certain Terms Defined.................... 1
Attributable Debt..................... 2
Authenticating Agent.................. 2
Authorized Newspaper.................. 2
Board of Directors.................... 3
Board Resolution...................... 3
Business Day.......................... 3
Commission............................ 3
Composite Rate........................ 3
Consolidated Net Tangible Assets...... 3
Corporate Trust Office................ 4
Coupon................................ 4
covenant defeasance................... 4
Depositary............................ 4
Dollar................................ 4
ECU................................... 4
Event of Default...................... 4
Exempted Debt......................... 4
Foreign Currency...................... 5
Holder, Holder of Securities,
Securityholder...................... 5
indebtedness.......................... 5
Indenture............................. 5
interest.............................. 5
Issuer................................ 5
Issuer Order.......................... 5
Judgment Currency..................... 5
Long-Term Indebtedness................ 5
Officer's Certificate................. 6
Opinion of Counsel.................... 6
original issue date................... 6
Original Issue Discount Security...... 6
Outstanding........................... 6
Periodic Offering..................... 7
person................................ 7
principal............................. 7
Principal Property.................... 7
i
<PAGE>
record date........................... 8
Registered Global Security............ 8
Registered Security................... 8
Required Currency..................... 8
Responsible Officer................... 8
Restricted Subsidiary................. 8
Sale and Lease-Back Transaction....... 8
Security or Securities................ 8
Subsidiary............................ 8
Trustee............................... 9
Trust Indenture Act of 1939........... 9
Unregistered Security................. 9
U.S. Government Obligations........... 9
Yield to Maturity..................... 9
ARTICLE TWO
SECURITIES
SECTION 2.1. Forms Generally.......................... 9
SECTION 2.2. Form of Trustee's Certificate
of Authentication...................... 10
SECTION 2.3. Amount Unlimited; Issuable in Series..... 11
SECTION 2.4. Authentication and Delivery of
Securities............................. 13
SECTION 2.5. Execution of Securities.................. 17
SECTION 2.6. Certificate of Authentication............ 17
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest....... 18
SECTION 2.8. Registration, Transfer and Exchange...... 19
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities.................. 23
SECTION 2.10. Cancellation of Securities;
Destruction Thereof.................... 24
SECTION 2.11. Temporary Securities..................... 25
SECTION 2.12. CUSIP Numbers............................ 26
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1. Payment of Principal and Interest........ 26
SECTION 3.2. Offices for Payments, etc. .............. 27
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee...................... 28
SECTION 3.4. Paying Agents............................ 28
SECTION 3.5. Written Statement to Trustee............. 29
SECTION 3.6. Limitation on Liens...................... 29
SECTION 3.7. Limitation on Sale and Lease-Back........ 32
SECTION 3.8. Luxembourg Publications.................. 33
ii
<PAGE>
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........................ 33
SECTION 4.2. Reports by the Issuer.................... 34
SECTION 4.3. Reports by the Trustee................... 34
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......... 34
SECTION 5.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt................. 37
SECTION 5.3. Application of Proceeds.................. 40
SECTION 5.4. Suits for Enforcement.................... 41
SECTION 5.5. Restoration of Rights on Abandonment
of Proceedings......................... 41
SECTION 5.6. Limitations on Suits by
Securityholders........................ 42
SECTION 5.7. Unconditional Right of
Securityholders to Institute
Certain Suits.......................... 42
SECTION 5.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default................................ 43
SECTION 5.9. Control by Holders of Securities......... 43
SECTION 5.10. Waiver of Past Defaults.................. 44
SECTION 5.11. Trustee to Give Notice of Default,
but May Withhold in Certain
Circumstances.......................... 44
SECTION 5.12. Right of Court to Require Filing
of Undertaking to Pay Costs............ 45
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default................................ 45
SECTION 6.2. Certain Rights of the Trustee............ 47
SECTION 6.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
iii
<PAGE>
Application of Proceeds Thereof........ 48
SECTION 6.4. Trustee and Agents May Hold
Securities or Coupons;
Collections, etc. ..................... 49
SECTION 6.5. Moneys Held by Trustee................... 49
SECTION 6.6. Compensation and Indemnification
of Trustee and Its Prior Claim......... 49
SECTION 6.7. Right of Trustee to Rely on
Officer's Certificate, etc. ........... 50
SECTION 6.8. Agreement Not Creating Potential
Conflicting Interests for the
Trustee................................ 50
SECTION 6.9. Persons Eligible for Appointment
as Trustee............................. 50
SECTION 6.10. Resignation and Removal; Appointment
of Successor Trustee................... 51
SECTION 6.11. Acceptance of Appointment by
Successor Trustee...................... 53
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business of Trustee...... 54
SECTION 6.13. Appointment of Authenticating Agent...... 55
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1. Evidence of Action Taken by
Securityholders........................ 56
SECTION 7.2. Proof of Execution of Instruments and
of Holding of Securities............... 56
SECTION 7.3. Holders to Be Treated as Owners.......... 58
SECTION 7.4. Securities Owned by Issuer Deemed Not
Outstanding............................ 58
SECTION 7.5. Right of Revocation of Action Taken...... 59
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1. Supplemental Indentures Without
Consent of Securityholders............. 60
SECTION 8.2. Supplemental Indentures With Consent
of Securityholders..................... 61
SECTION 8.3. Effect of Supplemental Indenture......... 63
SECTION 8.4. Documents to Be Given to Trustee......... 63
SECTION 8.5. Notation on Securities in Respect of
Supplemental Indentures................ 64
iv
<PAGE>
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1. Issuer May Consolidate, etc., on
Certain Terms.......................... 64
SECTION 9.2. Successor Issuer Substituted............. 65
SECTION 9.3. Opinion of Counsel to Trustee............ 66
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 10.1. Satisfaction and Discharge of
Indenture.............................. 66
SECTION 10.2. Application by Trustee of Funds
Deposited for Payment of Securities.... 71
SECTION 10.3. Repayment of Moneys Held by Paying
Agent.................................. 71
SECTION 10.4. Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Two
Years.................................. 71
SECTION 10.5. Indemnity for U.S. Government
Obligations............................ 72
SECTION 10.6 Reinvestment Provision................... 72
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt From
Individual Liability................... 72
SECTION 11.2. Provisions of Indenture for the Sole
Benefit of Parties and Holders of
Securities and Coupons................. 73
SECTION 11.3. Successors and Assigns of Issuer
Bound by Indenture..................... 73
SECTION 11.4. Notices and Demands on Issuer,
Trustee and Holders of Securities
and Coupons............................ 73
SECTION 11.5. Officer's Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein......................... 74
SECTION 11.6. Payments Due on Saturdays, Sundays
and Holidays........................... 75
SECTION 11.7. Conflict of Any Provision of
Indenture With Trust Indenture
Act of 1939............................ 75
v
<PAGE>
SECTION 11.8. New York Law to Govern................... 76
SECTION 11.9. Counterparts............................. 76
SECTION 11.10. Effect of Headings.......................76
SECTION 11.11. Securities in a Foreign Currency
or in ECU.............................. 76
SECTION 11.12. Judgment Currency........................77
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1. Applicability of Article................. 78
SECTION 12.2. Notice of Redemption; Partial
Redemptions............................ 78
SECTION 12.3. Payment of Securities Called for
Redemption............................. 80
SECTION 12.4. Exclusion of Certain Securities From
Eligibility for Selection for
Redemption............................. 81
SECTION 12.5. Mandatory and Optional Sinking
Funds.................................. 81
TESTIMONIUM.............................................. 84
SIGNATURES............................................... 84
vi
<PAGE>
THIS INDENTURE, dated as of April 10, 1992, between AMERICAN HOME
PRODUCTS CORPORATION, a Delaware corporation (the "Issuer"), and MANUFACTURERS
HANOVER TRUST COMPANY, a corporation duly organized and existing under the laws
of the State of New York, as trustee (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;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; 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 and of the coupons, if any, appertaining thereto 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, including terms defined therein by reference to the
Securities Act of 1933 (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
<PAGE>
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", when used in connection with a Sale and
-----------------
Lease-Back Transaction, shall mean, as of any particular time, the lesser of (a)
the fair value of the property subject to such arrangement and (b) the then
present value (computed by discounting at the Composite Rate) of the obligation
of a lessee for net rental payments during the remaining term of any lease
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended). The term "net rental payments" under any
-------------------
lease for any period shall mean the sum of the rental and other payments
required to be paid in such period by the lessee thereunder, not including,
however, any amounts required to be paid by such lessee (whether or not
designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges required
to be paid by such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges.
"Authenticating Agent" shall have the meaning set forth in Section
--------------------
6.13.
"Authorized Newspaper" means a newspaper (which, in the case of The
--------------------
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be the Luxemburger Wort) published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York, the United Kingdom or Luxembourg, as applicable. If it shall be
impractical in the opinion of the Trustee to make any publication of any notice
required hereby in an Authorized Newspaper, any publication or other notice in
lieu thereof which is made or given with the approval of the Trustee shall
constitute a sufficient publication of such notice.
2
<PAGE>
"Board of Directors" means either the Board of Directors of the Issuer
------------------
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
----------------
by the secretary or an assistant secretary of the Issuer to have been duly
adopted or consented to by the Board of Directors and to be in full force and
effect, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day that in the
------------
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, which is not a day on which banking
institutions are authorized or required by law or regulation to close.
"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 such
date.
"Composite Rate" means, at any time, the rate of interest, per annum,
--------------
compounded semiannually, equal to the sum of the rates of interest borne by each
of the Securities Outstanding hereunder (as specified on the face of each of the
Securities, provided, that, in the case of the Securities with variable rates of
--------
interest, the interest rate to be used in calculating the Composite Rate shall
be the interest rate applicable to such Securities at the beginning of the year
in which the Composite Rate is being determined and, provided, further, that, in
-------- -------
the case of Securities which do not bear interest, the interest rate to be used
in calculating the Composite Rate shall be a rate equal to the yield to maturity
on such Securities, calculated at the time of issuance of such Securities)
multiplied, in the case of each of the Securities, by the percentage of the
aggregate principal amount of all of the Securities then Outstanding represented
by such Security. For the purposes of this calculation, the aggregate principal
amounts of Outstanding Securities that are denominated in a Foreign Currency or
ECU shall be calculated in the manner set forth in Section 11.11.
"Consolidated Net Tangible Assets" means the aggregate amount of
--------------------------------
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding the amount of those
which are by their terms extendable or renewable at the option of the obligor to
a
3
<PAGE>
date more than 12 months after the date as of which the amount is being
determined) and (b) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the
most recent consolidated balance sheet of the Issuer and its consolidated
Subsidiaries and computed in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means the office of the Trustee at which the
----------------------
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in the Borough of Manhattan, The City of New York.
"Coupon" means any interest coupon appertaining to a Security.
------
"covenant defeasance" shall have the meaning set forth in Section
-------------------
10.1(C).
"Depositary" means, with respect to the Securities of any series
----------
issuable or issued in the form of one or more Registered Global Securities, the
person designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
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
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"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 European Communities.
"Event of Default" means any event or condition specified as such in
----------------
Section 5.1.
"Exempted Debt" means the sum of the following items outstanding as of
-------------
the date Exempted Debt is being determined: (i) indebtedness of the Issuer and
its Restricted Subsidiaries incurred after the date of this Indenture and
secured by mortgages created or assumed pursuant to Section 3.6(c) and (ii)
Attributable Debt of the Company and its Restricted Subsidiaries
4
<PAGE>
in respect of every Sale and Lease-Back Transaction entered into after the date
of this Indenture pursuant to Section 3.7(b).
"Foreign Currency" means a currency issued by the government of a
----------------
country other than the United States.
"Holder", "Holder of Securities", "Securityholder"
------ -------------------- --------------
or other similar terms mean (a) in the case of any Registered Security, the
person in whose name such Security is registered in the security register kept
by the Issuer for that purpose in accordance with the terms hereof, and (b) in
the case of any Unregistered Security, the bearer of such Security, or any
Coupon appertaining thereto, as the case may be.
"indebtedness" means any obligation which in accordance with generally
------------
accepted accounting principles would be classified as indebtedness. For all
purposes of this Indenture, all indebtedness which is either (a) secured by a
mortgage, lien or other encumbrance upon property owned by any corporation,
although such corporation has not assumed or become liable for the payment of
such indebtedness, or (b) guaranteed by any corporation shall be deemed to have
been assumed by such corporation and to be included in any reference to the
indebtedness of such corporation.
"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.
"interest" means, when used with respect to non-interest bearing
--------
Securities, interest payable after maturity.
"Issuer" means American Home Products Corporation, a Delaware
------
corporation, and, subject to Article Nine, its successors and assigns.
"Issuer Order" means a written statement, request or order of the
------------
Issuer signed in its name by the chairman or vice chairman of the Board of
Directors, the president, any vice president or the treasurer of the Issuer.
"Judgment Currency" shall have the meaning set forth in Section 11.12.
-----------------
"Long-Term Indebtedness" means all indebtedness of the Issuer maturing
----------------------
by its terms more than one year after, or which is renewable or extendible at
the option of the Issuer for a
5
<PAGE>
period ending more than one year after, the date as of which Long-Term
Indebtedness is being determined, and shall include indebtedness of others that
constitutes indebtedness of the Issuer.
"Officer's Certificate" means a certificate signed by the chairman or
---------------------
vice chairman of the Board of Directors, the president or any vice president or
the treasurer of the Issuer and delivered to the Trustee. Each such certificate
shall comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 11.5.
"Opinion of Counsel" means an opinion in writing signed by the General
------------------
Counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each
such opinion shall comply with Section 314 of the Trust Indenture Act of 1939
and include the statements provided for in Section 11.5.
"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," 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 theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section
10.1) 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, or portions thereof, are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given as
6
<PAGE>
herein provided, or provision satisfactory to the Trustee shall have been
made for giving such notice; and
(c) Securities which shall have been paid or in substitution for
which other Securities shall have been authenticated and delivered 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, 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.
"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" shall mean the Issuer's principal office building
------------------
and each manufacturing plant or research facility located within the territorial
limits of the States of the United States of America or Puerto Rico (but not
within any other territorial possession of the United States of America) of the
Issuer or a Subsidiary except such as the Board of Directors by resolution
reasonably determines (taking into account, among other things, the importance
of such property to the business, financial condition and earnings of the Issuer
and its consolidated Subsidiaries taken as a whole) not to be a Principal
Property.
7
<PAGE>
"record date" shall have the meaning set forth in Section 2.7.
-----------
"Registered Global Security" means a Security evidencing all or a part
--------------------------
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.4, and bearing the legend prescribed in Section
2.4.
"Registered Security" means any Security registered on the Security
-------------------
register of the Issuer.
"Required Currency" shall have the meaning set forth in Section 11.12.
-----------------
"Responsible Officer" when used with respect to the Trustee means the
-------------------
chairman of the Board of Directors, any vice chairman of the Board of Directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president
(whether or not designated by numbers or words added before or after the title
"vice president"), the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee 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 that owns any Principal
---------------------
Property.
"Sale and Lease-Back Transaction" shall have the meaning set forth in
-------------------------------
Section 3.7.
"Security" or "Securities" 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.
"Subsidiary" means any corporation (other than Genetics Institute,
----------
Inc.) the outstanding securities of which having ordinary voting power to elect
a majority of the board of directors of such corporation (whether or not any
other class of securities has or might have voting power by reason of the
happening of a contingency) are at the time owned or controlled directly or
indirectly by the Issuer or one or more Subsidiaries or by the Issuer and one or
more Subsidiaries, provided, however,
-------- -------
8
<PAGE>
that the term "Subsidiary" shall not mean any corporation engaged primarily in
financing receivables, making loans, extending credit, providing financing from
foreign sources or other activities of a character conducted by a finance
company.
"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. If at any time there is more than one such
person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Trust Indenture Act of 1939" means the Trust Indenture Act of 1939 as
---------------------------
amended and as in force at the date as of which this Indenture was originally
executed.
"Unregistered Security" means any Security other than a Registered
---------------------
Security.
"U.S. Government Obligations" shall have the meaning set forth in
---------------------------
Section 10.1(A).
"Yield to Maturity" means, as the context may require, the yield to
-----------------
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
ARTICLE TWO
SECURITIES
----------
SECTION 2.1 Forms Generally. The Securities of each series and the
---------------
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) as shall be established by or pursuant to one
or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to rather than set forth in a Board Resolution, an
Officer's Certificate detailing such establishment) 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 or endorsements, not inconsistent
9
<PAGE>
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, all as may be determined by
the officer executing such Securities and Coupons, if any, as evidenced by his
execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, 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 and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
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:
Date:
"This is one of the Securities referred to in the within-mentioned
Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
as Trustee
By
---------------------
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's certificate of
authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the within-mentioned
Indenture.
,
-------------------------
as Authenticating Agent
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.
10
<PAGE>
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Issuer. There shall be established in or pursuant to one or more
Board Resolutions (and to the extent established pursuant to rather than set
forth in a Board Resolution, in an Officer's Certificate detailing such
establishment) or established in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(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 Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the Securities
of that series are denominated (including, but not limited to, any Foreign
Currency or ECU);
(4) the date or dates on which the principal of the Securities of the
series is payable;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of Holders
to whom interest is payable and/or the method by which such rate or rates or
date or dates shall be determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(7) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, the price or
prices at which and any terms and conditions upon which Securities of the
series may be so redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or
11
<PAGE>
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and any terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the
series shall be issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such series
are to be payable, at the election of the Issuer or a Holder thereof, in a
coin or currency 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;
(13) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on
a coin or currency other than that in which the Securities of the series are
denominated, the manner in which such amounts shall be determined;
(14) whether the Securities of the series will be issuable as Registered
Securities (and if so, whether such Securities will be issuable as Registered
Global Securities) or Unregistered Securities (with or without Coupons), or
any combination of the foregoing, any restrictions applicable to the offer,
sale or delivery of Unregistered Securities or the payment of interest thereon
and, if other than as provided in Section 2.8, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer will pay additional
amounts on the Securities of the series held by a person who is not a U.S.
person in respect of any tax,
12
<PAGE>
assessment or governmental charge withheld or deducted and, if so, whether the
Issuer will have the option to redeem such Securities rather than pay such
additional amounts;
(16) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(17) any trustees (other than the Trustee named herein), Depositaries,
authenticating or paying agents, transfer agents or registrars or any other
agents with respect to the Securities of such series;
(18) any other events of default or covenants with respect to the
Securities of such series; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution or Officer's Certificate referred to above or
as set forth in any such indenture supplemental hereto. All Securities of any
one series need not be issued at the same time and may be issued from time to
time, consistent with the terms of this Indenture, if so provided by or pursuant
to such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
-----------------------------------------
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such
procedures, such Issuer Order may authorize authentication and delivery pursuant
to oral
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instructions from the Issuer or its duly authorized agent, which 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 (in the case of
subparagraphs 2, 3 and 4 below only at or before the time of the first request
of the Issuer to the Trustee to authenticate Securities of such series) and
(subject to Section 6.1) shall be fully protected in relying upon, unless and
until such documents have been superceded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer 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 an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to time by
an Issuer 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 an Issuer Order or pursuant to such procedures and (d) if
provided for in such procedures, such Issuer 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;
(2) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.1 or 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officer's Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and
terms of the Securities and Coupons, if any, have been established pursuant to
Sections 2.1 and 2.3 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter addressed to the Trustee permitting it to rely on an Opinion of
Counsel, substantially to the effect that:
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(a) the forms of the Securities and Coupons, if any, have been duly
authorized and established in conformity with the provisions of this
Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity with
the provisions of this Indenture, and, in the case of an offering that is
not underwritten, certain terms of the Securities have been established
pursuant to a Board Resolution, an Officer's Certificate or a
supplemental indenture in accordance with this Indenture, and when such
other terms as are to be established pursuant to procedures set forth in
an Issuer Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been established in
conformity with the provisions of this Indenture;
(c) when the Securities and Coupons, if any, have been executed by
the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture
and will be valid and legally binding obligations of the Issuer,
enforceable in accordance with their respective terms, and will be
entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities and
Coupons, if any, will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Issuer or any
agreement or other instrument binding upon the Issuer or any of its
Subsidiaries that is material to the Issuer and its Subsidiaries,
considered as one enterprise, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Issuer or
any Subsidiary, and no consent, approval or authorization of any
governmental body or agency is required for the performance by the Issuer
of its obligations under the Securities and Coupons, if any, except such
as are specified and have been obtained and such as may be required by
the securities or blue sky laws of the various states in connection with
the offer and sale of the Securities and Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability
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may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting the rights and remedies of creditors
and is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
State of New York and the federal law of the United States, upon opinions of
other counsel (copies of which shall be delivered to the Trustee), who shall be
counsel reasonably satisfactory to the Trustee, in which case the opinion shall
state that such counsel believes he and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Issuer and its Subsidiaries and certificates of public
officials.
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 by the Issuer 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 or a Responsible
Officer shall determine that such action would expose the Trustee to personal
liability to existing Holders or would affect the Trustee's own rights, duties
or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a series are to be issued in the form of one or more Registered Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such series, authenticate
and deliver one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series issued and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Registered Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to 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."
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Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities and, if applicable,
-----------------------
each Coupon appertaining thereto shall be signed on behalf of the Issuer by the
chairman or vice chairman of its Board of Directors or its president or any vice
president or its treasurer, under its corporate seal (except in the case of
Coupons) which may, but need not, be attested. Such signature(s) may be the
manual or facsimile signature(s) of the present or any future such officer(s).
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 or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such person(s) as, at the actual date of
the execution of such Security or Coupon, shall be the proper officer(s) of the
Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an 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 the 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. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of 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
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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 or
Unregistered Securities in denominations established as contemplated by Section
2.3 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the officer(s) of the Issuer
executing the same may determine with the approval of the Trustee, as evidenced
by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.3.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered 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 Registered
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
Registered Securities for 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 Registered Securities
not less than 15 days preceding such subsequent record date. The term "record
date" as used with respect to any interest payment date (except a date for
payment of defaulted interest) for the Securities of any series shall mean the
date specified as such in the terms of the Registered Securities of such series
established as contemplated by Section 2.3, or, if no such date is so
established, if such interest payment date is the first day of a
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calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
The Issuer may make payment of any defaulted interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Issuer to the Trustee of the proposed
payment pursuant to this provision, such payment shall be deemed practicable by
the Trustee.
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 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. 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 Registered
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 Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any series
(other than a Registered Global Security, except as set forth below) may be
exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the office or agency
of the Issuer that shall be maintained for such purpose in accordance with
Section 3.2 and upon payment, if the Issuer shall so require, of the charges
hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise specified pursuant to
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Section 2.3, at the option of the Holder thereof, Unregistered Securities of any
series may be exchanged for Registered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender
of such Unregistered Securities to be exchanged at the office or agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2,
with, in the case of Unregistered Securities that have Coupons attached, all
unmatured Coupons and all matured Coupons in default thereto appertaining, and
upon payment, if the Issuer shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of
any series, maturity date, interest rate and original issue date are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.3, such Unregistered Securities may be exchanged for Unregistered
Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged
at the office or agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2 or as specified pursuant to Section 2.3, with, in
the case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided.
Unless otherwise specified pursuant to Section 2.3, Registered Securities of any
series may not be exchanged for Unregistered Securities of such series.
Whenever any Securities are so surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive. All Securities and
Coupons surrendered upon any exchange or transfer provided for in this Indenture
shall be promptly cancelled and destroyed pursuant to Section 2.10.
All Registered 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
20
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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, in whole or in part, except, in the case of any Security
to be redeemed in part, the portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered
Securities. If a successor Depositary eligible under Section 2.4 for such
Registered Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the Issuer's
election pursuant to Section 2.3 that such Registered Securities be represented
by one or more Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Trustee, upon receipt of an Officer's Certificate
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Security
or Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of an Officer's Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form without Coupons, in any authorized
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denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities, in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the person specified by such Depositary a new Registered Security
or Securities of the same series, of any authorized denominations as requested
by such person, in an aggregate principal amount equal to and in exchange for
such person's beneficial interest in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount
of Registered Securities authenticated and delivered pursuant to clause (i)
above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee or, upon
instruction from the Trustee, an agent of the Issuer or the Trustee. Securities
in definitive registered form without Coupons issued in exchange for a
Registered Global Security pursuant to this Section 2.8 shall be registered in
such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer
or the Trustee. The Trustee or such agent shall deliver such Securities to or
as directed by the persons in whose names such Securities are so registered.
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.
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Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, may rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
----------------------------------------------------------
In case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated, defaced or be destroyed, lost or stolen and, in
the absence of notice to the Issuer or the Trustee that the Coupon or Security
has been purchased by a bona fide purchaser, the Issuer in its discretion may
execute, and upon an Issuer Order, the Trustee shall authenticate and deliver a
new Security of the same series, maturity date, interest rate and original issue
date, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so destroyed, lost or stolen
with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution
for the Security to which such mutilated, defaced, destroyed, lost or stolen
Coupon appertained, with Coupons appertaining thereto corresponding to the
Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon 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 or Coupon
and of the ownership thereof and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, 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) or its agent connected therewith. In case
any Security or Coupon 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
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may instead of issuing a substitute Security, pay or authorize the payment of
the same or the relevant Coupon (without surrender thereof except in the case of
a mutilated or defaced Security or Coupon), 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 or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon 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 or Coupons of such series duly authenticated and delivered hereunder.
All Securities and Coupons 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 Coupons 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 Cancellation of Securities; Destruction Thereof. All
------------------------------------------------
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. All cancelled
Securities or Coupons held by the Trustee or its agents shall be destroyed and
certification of their destruction delivered to the Issuer unless, by an Issuer
Order, the Issuer shall direct that cancelled Securities or Coupons be returned
to it. If the Issuer or its agent shall acquire any of the Securities or
Coupons, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities or Coupons unless
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and until the same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
--------------------
definitive Securities for any series, the Issuer may execute and upon an Issuer
Order the Trustee shall authenticate and deliver temporary Securities for 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, or as Unregistered
Securities with or without Coupons attached thereto, 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 as evidenced by the execution and authentication
thereof. Temporary Securities may contain such references 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 and thereupon temporary
Registered 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, in the case of Unregistered Securities, at
an office or agency maintained by the Issuer for such purpose as specified
pursuant to Section 2.3, and the Trustee shall authenticate and deliver in
exchange for such temporary Securities of such series an equal aggregate
principal amount of definitive Securities of the same series having authorized
denominations and, in the case of Unregistered Securities, having attached
thereto any appropriate Coupons. 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, unless otherwise established pursuant to
Section 2.3. The provisions of this Section are subject to any restrictions or
limitations on the issue and delivery of temporary Unregistered Securities of
any series that may be established pursuant to Section 2.3 (including any
provision that Unregistered Securities of such series initially be issued in the
form of a single global Unregistered Security to be delivered to a depositary or
agency located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Securities).
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SECTION 2.12 CUSIP Numbers. The Issuer in issuing the Securities may
-------------
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
- --------
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
-----------------------
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
---------------------------------
agrees for the benefit 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 (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons appertaining thereto and in this Indenture. The interest on Securities
with Coupons attached (together with any additional amounts payable pursuant to
the terms of such Securities) shall be payable only upon presentation and
surrender of the several Coupons for such interest installments as are evidenced
thereby as they severally mature. The interest on any temporary Unregistered
Securities (together with any additional amounts payable pursuant to the terms
of such Securities) shall be paid, as to the installments of interest evidenced
by Coupons attached thereto, if any, only upon presentation and surrender
thereof, and, as to the other installments of interest, if any, only upon
presentation of such Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to or upon the written order of the Holders thereof and at the option of the
Issuer may be paid by mailing checks for such interest payable to or upon the
written order of such Holders at their last addresses as they appear on the
registry books of the Issuer.
SECTION 3.2 Offices for Payments, etc. The Issuer will maintain in the
--------------------------
Borough of Manhattan, The City of New York, an office or agency where the
Registered Securities of each series may be presented for payment, an office or
agency where the Securities of each series may be presented for exchange as is
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provided in this Indenture and, if applicable, pursuant to Section 2.8 an office
or agency where the Registered Securities of each series may be presented for
registration of transfer as in this Indenture provided. The Issuer hereby
initially appoints the office of the Trustee set forth in Section 11.4 as its
office or agency for each of the foregoing purposes.
The Issuer will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
office or agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be presented for payment. No payment on any
Unregistered Security or Coupon will be made upon presentation of such
Unregistered Security or Coupon at an office or agency of the Issuer within the
United States nor will any payment be made by transfer to an account in, or by
mail to an address in, the United States unless pursuant to applicable United
States laws and regulations then in effect such payment can be made without
adverse tax consequences to the Issuer. Notwithstanding the foregoing, payments
in Dollars of Unregistered Securities of any series and Coupons appertaining
thereto which are payable in Dollars may be made at an office or agency of the
Issuer maintained in the Borough of Manhattan, The City of New York, if such
payment in Dollars at each office or agency maintained by the Issuer outside the
United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any office or agency required by this Section to
be located in the Borough of Manhattan, The City of New York, or shall fail to
give such notice of the location or of any change in the location of any of the
above offices or agencies, presentations and demands may be made and notices
may be served at the Corporate Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional offices
or agencies where the Securities of a series and Coupons appertaining thereto
may be presented for payment, where the Securities of that series may be
presented for exchange
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as provided in this Indenture and pursuant to Section 2.8 and where the
Registered Securities of that series may be presented for registration of
transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
- -------- -------
relieve the Issuer of its obligation to maintain the offices or agencies
provided for in the immediately preceding paragraphs. The Issuer will give to
the Trustee prompt written notice of any such designation or rescission thereof.
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, that such paying agent,
(a) 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 Coupons appertaining thereto, or of the Trustee,
until such sums shall be paid to such holders or otherwise disposed of as
herein provided;
(b) 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; and
(c) at any time during the continuance of any such failure, upon the
written request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust by such paying agent.
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
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agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of its action or
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 with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid, or by Issuer Order direct any paying agent to
pay 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 annually, commencing March 31, 1993, a certificate of its principal
executive officer, principal financial officer or principal accounting officer,
stating whether or not to the best knowledge of the signer thereof the Issuer is
in compliance (without regard to periods of grace or notice requirements) with
all conditions and covenants under this Indenture, and if the Issuer shall not
be in compliance, specifying such non-compliance and the nature and status
thereof of which such signer may have knowledge.
SECTION 3.6 Limitation on Liens. The following provisions shall apply
-------------------
to the Securities of each series unless specifically otherwise provided in a
Board Resolution, Officer's Certificate or indenture supplemental hereto
provided pursuant to Section 2.3.
(a) The Issuer will not create or assume, and will not permit any
Restricted Subsidiary to create or assume, any mortgage, pledge, security
interest or lien (any such mortgage, pledge, security interest or lien being
hereinafter in this Article Three referred to as a "mortgage" or "mortgages") of
or
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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 Issuer in such case will
make or cause to be made effective provision, whereby the Securities of such
series (together with, if the Issuer shall so determine, any other indebtedness
or liability issued, assumed or guaranteed by the Issuer or such Restricted
Subsidiary, whether then existing or thereafter created) shall be secured by
such a mortgage equally and ratably with any and all other indebtedness or
obligations thereby secured, so long as such indebtedness or obligations shall
be so secured; provided, however, that the foregoing shall not apply to any of
-------- -------
the following:
(1) mortgages on any Principal Property, shares of stock or indebtedness
of any corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(2) mortgages on any Principal Property acquired, constructed or
improved by the Issuer or any Restricted Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with such
acquisition, construction or improvement or within 120 days after the latest
of the acquisition, completion of construction (including any improvement on
an existing property) or commencement of commercial operation of such
property, to secure or provide for the payment of all or any substantial part
of the purchase price of such property or the cost of such construction or
improvement incurred after the date of this Indenture, or, in addition to
mortgages contemplated by clause (3) below, mortgages on any Principal
Property existing at the time of acquisition thereof; provided, however, that
-------- -------
in the case of any such acquisition, construction or improvement the mortgage
shall not apply to any property theretofore owned by the Issuer or any
Restricted Subsidiary, other than, in the case of any such construction or
improvement, any theretofore unimproved or substantially unimproved real
property on which the property so constructed, or the improvement, is located;
(3) mortgages on any Principal Property or shares of stock or
indebtedness acquired from a corporation which is merged with or into the
Issuer or a Restricted Subsidiary;
(4) mortgages on any Principal Property to secure indebtedness of a
Restricted Subsidiary to the Issuer or to another Restricted Subsidiary;
(5) mortgages on any Principal Property in favor of the United States of
America or any State thereof or The
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Commonwealth of Puerto Rico, or any department, agency or instrumentality or
political subdivision of the United States of America or any State thereof or
The Commonwealth of Puerto Rico, to secure partial, progress, advance or other
payments, or other obligations pursuant to any contract or statute or to
secure any indebtedness or obligations incurred for the purpose of financing
all or any part of the cost of acquiring, constructing or improving the
Principal Property subject to such mortgages (including mortgages incurred in
connection with pollution control, industrial revenue, Title XI maritime
financings or similar financings);
(6) mortgages existing on the date hereof; and
(7) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any mortgage referred to in
the foregoing clauses (1) to (6), inclusive; provided, however, that the
-------- -------
principal amount of indebtedness secured thereby shall not be in excess of 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 which secured the mortgage so
extended, renewed or replaced (plus improvements on such property).
(b) The Issuer will not, nor will it permit any Restricted Subsidiary
to, merge or consolidate with or into another corporation, or sell all or
substantially all of its assets to another corporation for a consideration other
than the fair value thereof in cash, if such other corporation has outstanding
obligations secured by a mortgage which, after such merger, consolidation or
sale, would extend to any Principal Property owned by the Issuer or such
Restricted Subsidiary immediately prior to such merger, consolidation or sale
unless prior to such merger, consolidation or sale the Issuer or such Restricted
Subsidiary shall have effectively provided that the Securities then outstanding
(together with, if the Issuer or such Restricted Subsidiary shall so determine,
any other indebtedness or liability issued, assumed or guaranteed by the Issuer
or such Restricted Subsidiary, whether then existing or thereafter created)
shall be secured by a mortgage, the lien of which, upon completion of said
merger, consolidation or sale, will rank prior to the lien of such mortgage of
such other corporation on any Principal Property owned by the Issuer or such
Restricted Subsidiary immediately prior to such merger, consolidation or sale,
which, upon completion of such merger, consolidation or sale, will be subjected
to the lien of such mortgage of such other corporation.
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(c) Notwithstanding the provisions of paragraph (a) of this Section 3.6,
the Issuer or any Restricted Subsidiary may create or assume mortgages in
addition to those permitted by paragraph (a) of this Section 3.6, and renew,
extend or replace such mortgages, provided that at the time of such creation,
--------
assumption, renewal or replacement, and after giving effect thereto, Exempted
Debt does not exceed 10% of the Issuer's Consolidated Net Tangible Assets.
SECTION 3.7 Limitation on Sale and Lease-Back. The following provisions
---------------------------------
shall apply to the Securities of each series unless specifically otherwise
provided in a Board Resolution, Officer's Certificate or indenture supplemental
hereto provided pursuant to Section 2.3.
(a) The Issuer will not, nor will it permit any Restricted Subsidiary
to, enter into any arrangement with any person (other than the Issuer or any
Restricted Subsidiary) providing for the leasing by the Issuer or a Restricted
Subsidiary of any Principal Property (except for temporary leases for a term of
not more than three years), which property has been or is to be sold or
transferred by the Issuer or such Restricted Subsidiary to such person (herein
referred to as a "Sale and Lease-Back Transaction"), unless either (1) the
Issuer or such Restricted Subsidiary would be entitled to incur indebtedness
secured by a mortgage on the Principal Property to be leased equal in amount to
the Attributable Debt with respect to such Sale and Lease-Back Transaction,
without equally and ratably securing the Securities of such series, pursuant to
the provisions of Section 3.6(a) or (2) the proceeds of such sale or transfer
are at least equal to the fair value (as determined by the Board of Directors)
of such property and the Issuer shall, and in any such case the Issuer covenants
that it will, apply an amount equal to the fair value (as determined by the
Board of Directors) of the property so leased to the purchase of Principal
Property or to the retirement (other than any mandatory retirement), within 120
days of the effective date of any such Sale and Lease-Back Transaction, of
Long-Term Indebtedness, to the extent the redemption thereof is not prohibited
by the terms of such Long-Term Indebtedness, or any other indebtedness for
borrowed money incurred or assumed by the Issuer which by its terms matures at,
or is extendible or renewable at the option of the obligor to, a date more than
12 months after the date of the creation of such debt; provided that, in lieu of
--------
applying all or any part of such proceeds to such retirement, the Issuer may
deliver Securities to the Trustee for cancellation, the Securities so delivered
to be credited at the cost thereof to the Issuer as certified to the Trustee by
an Officer's Certificate,
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which need not comply with Section 11.5, at the time of such delivery to the
Trustee.
(b) Notwithstanding the provisions of paragraph (a) of this Section 3.7,
the Issuer or any Restricted Subsidiary may enter into a Sale and Lease-Back
Transaction in addition to those permitted by paragraph (a) of this Section 3.7
and without any obligation to retire any Securities or other indebtedness
referred to in paragraph (a) of this Section 3.7, provided that at the time of
--------
entering into such Sale and Lease-Back Transaction and after giving effect
thereto, Attributable Debt resulting from such Sale and Lease-Back Transaction,
together with all other Exempted Debt, does not exceed 10% of the Issuer's
Consolidated Net Tangible Assets.
SECTION 3.8 Luxembourg Publications. In the event of the publication of
-----------------------
any notice pursuant to Section 5.11, 6.10(a), 6.11, 6.13, 8.2, 10.4, 12.2 or
12.5, the party making such publication in the Borough of Manhattan, The City of
New York and London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable Luxembourg law or
stock exchange regulation, as evidenced by an Officer's Certificate delivered to
such party, make a similar publication in Luxembourg.
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. If and so long as the Trustee shall not be the
- ----------------------------
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities 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 Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than
15 days after each record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.3 for non-interest bearing Registered
Securities in each year, and (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.
SECTION 4.2 Reports by the Issuer. The Issuer covenants to file with
---------------------
the Trustee, within 15 days after the Issuer is
33
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required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports that 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 or pursuant to Section 314 of the Trust
Indenture Act of 1939.
SECTION 4.3 Reports by the Trustee. Any Trustee's report required under
----------------------
Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or
before July 15 in each year beginning July 15, 1993, as provided in Section
313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
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" with respect to Securities of any series
- ----------
wherever used herein, means each one of the following events which shall have
occurred and be continuing (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 any redemption, by declaration or otherwise;
or
(c) 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 the
Securities of such series (other than a covenant or warranty in respect of the
Securities of such series a default in the performance or breach of which is
elsewhere in this Section specifically dealt with) or in this Indenture
contained 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
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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 Outstanding Securities of all series affected thereby; or
(d) 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
(e) 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; or
(f) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security for
such series.
If an Event of Default described in clauses (a), (b), (c) or (f) (if the
Event of Default under clause (c) or (f), as the case may be, is with respect to
less than all series of Securities then Outstanding) occurs and is continuing,
then, and in each and every such case, except for any series of Securities the
principal of which 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 all such affected series 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 the Securities of any
such affected 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 all such affected series, 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
clauses (c) or (f) (if the
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Event of Default under clause (c) or (f), as the case may be, is with respect to
all series of Securities then Outstanding), (d) or (e) 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 each 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 each
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 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 all the Securities of each such
series, or of all the Securities, in each case voting as a single class, then
Outstanding, by written notice to the Issuer and to
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<PAGE>
the Trustee, may waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) 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.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
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 of 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 disbursements and
advances made, by the Trustee and each predecessor Trustee except as a result of
its negligence or bad faith.
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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 the Securities
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon the 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 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 comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
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 such 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 disbursements and 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
38
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the Issuer or other obligor upon the Securities, 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, 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 and all other amounts due
the Trustee under Section 6.6 in each case 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 of 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 of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof in 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, compensation and advances of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the
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Securities or Coupons appertaining to such Securities 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 or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
-----------------------
Trustee pursuant to this Article in respect of any series 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 and Coupons appertaining to such
Securities in respect of which monies 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 like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series in
respect of which monies have been collected, including payment of all amounts
due the Trustee and each predecessor Trustee under Section 6.6, and all
advances made, by the Trustee and each predecessor Trustee and their
respective agents and attorneys except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series 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 such Securities, such payments to be made ratably to
the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series 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
40
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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 or Yield to Maturity, without preference or priority of principal
over interest or Yield to Maturity, or of interest or Yield to Maturity 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 or Yield to Maturity; 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 or of any Coupon appertaining thereto 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
41
<PAGE>
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 each affected series then
Outstanding (treated as a single class) 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 Holder of every Security or
Coupon with every other Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities 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 such
Holder of Securities or Coupons appertaining to such 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 and Coupons appertaining to such Securities. 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 or Coupon to receive
payment of the principal of and interest on such Security or Coupon on or after
the respective due dates expressed in such Security or Coupon, 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 5.6, no right or remedy herein
- -----------------
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons 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
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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 Holder of Securities or
Coupons 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 right, power and remedy
given by this Indenture or by law to the Trustee or to the Holders of Securities
or Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.9 Control by Holders of Securities. The Holders of a majority
--------------------------------
in aggregate principal amount of the Securities of each series affected (with
all such series voting as a single 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 a Responsible Officer of the Trustee shall
determine that the action or proceedings so directed would expose the Trustee to
personal liability or if the Trustee in good faith shall so determine that the
actions or forebearances specified in or pursuant to such direction would 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.
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- - SECTION 5.10 Waiver of Past Defaults. Prior to the acceleration of the
-----------------------
maturity of any Securities as provided in Section 5.1, the Holders of a majority
in aggregate principal amount of the Securities of all series at the time
Outstanding with respect to which an Event of Default shall have occurred and be
continuing (voting as a single class) may on behalf of the Holders of all such
Securities waive any past default or Event of Default described in Section 5.1
and its consequences, except a default 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 all such Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or Event of 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, within 90 days after the occurrence
- ---------------------
of any default with respect to the Securities of any series, give notice of such
default with respect to that series known to the Trustee (i) if any Unregistered
Securities of that series are then Outstanding, to the Holders thereof, by
publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.8, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Registered Securities of
such series in the manner and to the extent provided in Section 11.4, unless in
each case such defaults shall have been cured before the mailing or publication
of such notice (the term "defaults" for the purpose 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 payment of any sinking fund installment on 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
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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. The parties to this Indenture agree, and each Holder of any Security or
- -----
Coupon 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 (c) or (f) of Section 5.1 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (c) or (f) (if
the suit under clause (c) or (f) relates to all the Securities then
Outstanding), (d) or (e) of Section 5.1, 10% in aggregate principal amount of
all Securities then 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 or any date fixed
for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
----------------------
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
------------------------------------------------------------
Prior to Default. The Trustee, prior to the occurrence of an Event of Default
- ----------------
with respect to the Securities of a particular 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 with respect to such series of Securities
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
45
<PAGE>
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 wilful 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 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
46
<PAGE>
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.
The provisions of this Section 6.1 are in furtherance of and subject to
Section 315 of the Trust Indenture Act of 1939.
SECTION 6.2 Certain Rights of the Trustee. In furtherance of and
-----------------------------
subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officer's 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 Officer's 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) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and any written advice or any
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 reliance thereon in accordance with such advice or
Opinion of Counsel;
(e) 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
47
<PAGE>
security or indemnity against the costs, expenses and liabilities which might
be incurred therein or thereby;
(f) 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;
(g) 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 Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a condition to proceeding;
the reasonable expenses of every such investigation shall be paid by the
Issuer or, if paid by the Trustee or any predecessor Trustee, shall be repaid
by the Issuer upon demand; and
(h) 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.
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 or Coupons. 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 or Coupons;
---------------------------------------------------
Collections, etc. The Trustee or any agent of the
- -----------------
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<PAGE>
Issuer or the Trustee, in its individual or any other capacity, may become the
owner or pledgee of Securities or Coupons with the same rights it would have if
it were not the Trustee or such agent and 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 as shall be agreed
to in writing between the Issuer and the Trustee (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 and all 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 or liability in connection with the exercise
or performance of any of its powers or duties hereunder. 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 payment of principal or interest on
particular
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Securities or Coupons, and the Securities are hereby subordinated to such senior
claim and the Trustee shall have a lien therefor prior to the Securities on all
such property and funds.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.1(d) or Section 5.1(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
SECTION 6.7 Right of Trustee to Rely on Officer's 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 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
Officer's 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 Agreement Not Creating Potential Conflicting Interests for
-----------------------------------------------------------
the Trustee. To the extent necessary, the following agreement is hereby
- -----------
specifically described for the purposes of Section 310(b)(1) of the Trust
Indenture Act of 1939: the Trust Agreement dated as of December 1, 1984 between
Puerto Rico Industrial, Medical and Environmental Pollution Control Facilities
Financing Authority and the Trustee relating to $40,000,000 Adjustable Rate
Industrial Revenue Bonds, 1983 Series A due December 1, 2018.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The Trustee
--------------------------------------------
for each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $5,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. Such corporation shall have its
principal place of business 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
50
<PAGE>
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid 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.
The provisions of this Section 6.9 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
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 (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York, and at
least once in an Authorized Newspaper in London (and, if required by Section
3.8, at least once in an Authorized Newspaper in Luxembourg), and (ii) by
mailing notice of such resignation to the Holders of then Outstanding Registered
Securities of each series affected at their addresses as they shall appear on
the registry books. 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 310(b) of the Trust Indenture
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Act of 1939 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 Section 310(a) of the Trust
Indenture Act of1939 and shall fail to resign after written request
therefor by the Issuer or by any 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;
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 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security of 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 each series at the time outstanding may at any time remove the
Trustee with respect to the Securities of such series and appoint a successor
trustee with respect to the Securities of such series 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
52
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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,
duly assign, transfer and deliver to the successor trustee all moneys at the
time held by it hereunder 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 and lien 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
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6.11 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act of 1939 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 give notice thereof (a) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof, by
publication of such notice at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.8, at least once in an
Authorized Newspaper in Luxembourg), and (b) to the Holders of Registered
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. 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 give such notice within ten
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Issuer.
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 Section 310(b) of the Trust Indenture Act
of 1939 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
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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 Appointment of Authenticating Agent. As long as any
-----------------------------------
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a certificate of authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.9 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.13 with respect to one or more
series of
55
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Securities, the Trustee may, with the approval of the Issuer, appoint a
successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable
to any Authenticating Agent.
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
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.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
----------------------------------------------------
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
- ----------
by a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments 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
56
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such execution is by or on behalf of any legal entity other than an
individual, such certificate or affidavit shall also constitute sufficient
proof of the authority of the person executing the same. The fact of the
holding by any Holder of an Unregistered Security of any series, and the
identifying number of such Security and the date of his holding the same, may
be proved by the production of such Security or by a certificate executed by
any trust company, bank, banker or recognized securities dealer wherever
situated satisfactory to the Trustee, if such certificate shall be deemed by
the Trustee to be satisfactory. Each such certificate shall be dated and
shall state that on the date thereof a Security of such series bearing a
specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named in
such certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities of one or more series specified therein. The
holding by the person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Securities shall be produced, or (2) the
Security of such series specified in such certificate shall be produced by
some other person, or (3) the Security of such series specified in such
certificate shall have ceased to be Outstanding. Subject to Sections 6.1 and
6.2, the fact and date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the person so executing such
instrument and the amount and numbers of any Security or Securities for such
series may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in any
other reasonable manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security registrar.
The Issuer may set a record date for purposes of determining the identity
of Holders of Registered Securities of any series entitled to vote or consent to
any action referred to in Section 7.1, which record date may be set at any time
or from time to time by notice to the Trustee, for any date or dates (in the
case of any adjournment or reconsideration) not more than 60 days nor less than
five days prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, with respect to Registered
Securities of any
57
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series, only Holders of Registered Securities of such series of record on such
record date shall be entitled to so vote or give such consent or revoke such
vote or consent.
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.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
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 Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
--------------------------------------------------
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series 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
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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 Officer's 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.l and
6.2, the Trustee shall be entitled to accept such Officer's 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. 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 or on registration of transfer thereof, 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.
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 (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or
59
<PAGE>
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series 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 as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons 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 any other provisions as the Issuer may deem necessary or
desirable, provided that no such provisions shall adversely affect the
--------
interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.1 and
2.3; and
(f) 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
60
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hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer 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 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 a majority 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
(which resolution may provide general terms or parameters for such action and
may provide that the specific terms of such action may be determined in
accordance with or pursuant to an Issuer Order), and the Trustee may, from time
to time and at any time, enter into an indenture or indentures supplemental
hereto 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 or of the Coupons appertaining to such
Securities; 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 make the principal thereof (including
any amount in respect of original issue discount), or interest thereon payable
in any coin or currency other than that provided in the Securities and Coupons
or in accordance with the terms 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 alter the provisions
of Section 11.11 or 11.12 or impair or affect the right of any Securityholder to
institute suit for the payment thereof or, if the Securities provide therefor,
any right of repayment at the
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option of the Securityholder, in each case without the consent of the Holder of
each Security so affected, or (b) reduce the aforesaid percentage in principal
amount 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, or (c) modify any of the provisions of this
Section, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) 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 the Holders of the Securities 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 Trustee
shall give notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
Security register, and (ii) if any Unregistered Securities of a series
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affected thereby are then Outstanding, to all Holders thereof, by publication of
a notice thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper in
London (and, if required by Section 3.8, at least once in an Authorized
Newspaper in Luxembourg), and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure of the
Issuer to give 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 Officer's Certificate and
an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
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 by Securityholders. 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
-----------------------------------------
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SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
-----------------------------------------------
the provisions of subsection (b) of Section 3.6, nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of the Issuer with or into any other corporation or corporations (whether or not
affiliated with the Issuer), or successive consolidations or mergers in which
the Issuer or its successor or successors shall be a party or parties, or shall
prevent any sale or conveyance of all or substantially all the property of the
Issuer to any other corporation (whether or not affiliated with the Issuer)
authorized to acquire and operate the same; provided, however, that immediately
-------- -------
after giving effect to such transaction, no Event of Default with respect to any
series of Securities and no event which, after notice or lapse of time or both,
would become an Event of Default with respect to any series of Securities shall
have occurred and be continuing; and provided, further, that upon any such
-------- -------
consolidation, merger, sale or conveyance, other than a consolidation or merger
in which the Issuer is the continuing corporation, the due and punctual payment
of the principal of and interest on all of the Securities and Coupons, 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 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 (if other
than the Issuer) formed by such consolidation, or into which the Issuer shall
have been merged, or by the corporation which shall have acquired such property,
and, provided, further, that such corporation shall be incorporated under the
-------- -------
laws of the United States of America or a State of the United States of America.
SECTION 9.2 Successor Issuer Substituted. In case of any such
----------------------------
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and interest on all of the Securities and Coupons and the
due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Issuer, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the Issuer, and the predecessor Issuer shall thereupon be
released from all obligations hereunder and under the Securities and Coupons.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of American Home Products Corporation any
or all of the Securities issuable hereunder, together with any Coupons
appertaining thereto, which theretofore shall not have been signed by the
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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 or the Authenticating
Agent on its behalf shall authenticate and shall deliver any Securities,
together with any Coupons appertaining thereto, which previously shall have been
signed and delivered by the officers of the Issuer to the Trustee or the
Authenticating Agent on its behalf for authentication, and any Securities,
together with any Coupons appertaining thereto, which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee or the
Authenticating Agent on its behalf for that purpose. All the Securities so
issued, together with any Coupons appertaining thereto, shall in all respects
have the same legal rank and benefit under this Indenture as the Securities and
Coupons theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities and Coupons had been issued at the
date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities and Coupons 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, shall receive an Opinion of Counsel and an
Officer's Certificate, prepared in accordance with Section 11.5, 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.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
----------------------------------------
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) 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 any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than Securities of such series and
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Coupons appertaining thereto which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.9) 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
and all unmatured Coupons appertaining thereto (other than any Securities of
such series and Coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.9) or (c) in the case of any series of Securities where the exact amount
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (ii)
below, (i) all the Securities of such series and all unmatured Coupons
appertaining thereto 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 within one year 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 cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance with
Section 10.4) or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United States of America,
backed by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the principal
and interest on all Securities of such series and Coupons appertaining thereto
on each date that such principal or interest is due and payable and (B) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series; and if, in any such case, the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer, then this Indenture shall cease
to be of further effect with respect to the Securities of such series (except as
to (i) rights of registration of transfer and exchange of Securities of such
series and of Coupons appertaining thereto and the Issuer's right of optional
redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or
stolen Securities or Coupons, (iii) rights of holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
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fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series and Coupons appertaining thereto as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them, and
(vi) the obligations of the Issuer under Section 3.2) and the Trustee, on demand
of the Issuer accompanied by an Officer's Certificate and an Opinion of Counsel
which comply with Section 11.5 and at the cost and expense of the Issuer, shall
execute proper instruments acknowledging such satisfaction of and discharging
this Indenture with respect to the Securities of such series; provided that the
--------
rights of Holders of the Securities and Coupons to receive amounts in respect of
principal of and interest on the Securities and Coupons held by them shall not
be delayed longer than required by then-applicable mandatory rules or policies
of any securities exchange upon which the Securities are listed. 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. Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Issuer to the Trustee
under Section 6.6 and the obligations of the Trustee under this Section 10.1
shall survive.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (a) below,
the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such series and the Coupons appertaining thereto on the
91st day after the date of the deposit referred to in clause (a) below, and the
provisions of this Indenture with respect to the Securities of such series and
Coupons appertaining thereto shall no longer be in effect (except as to (i)
rights of registration of transfer and exchange of Securities of such series and
of Coupons appertaining thereto and the Issuer's right of optional redemption,
if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (iv) the rights,
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obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them and (vi) the obligations of the Issuer under
Section 3.2) and the Trustee, at the expense of the Issuer, shall at the
Issuer's request, execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of such series and Coupons
appertaining thereto (i) cash in an amount, or (ii) in the case of any series
of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations, maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal and interest on all
Securities of such series and Coupons appertaining thereto on each date that
such principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer is
a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of Counsel based
on the fact that (x) the Issuer has received from, or there has been published
by, the Internal Revenue Service a ruling or (y) since the date hereof, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and such opinion shall confirm that, the Holders of the
Securities of such series and Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not occurred; and
(d) the Issuer has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all
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conditions precedent provided for relating to the defeasance contemplated by
this provision have been complied with.
(C) The Issuer shall be released from its obligations under Sections
3.6, 3.7 and 9.1 with respect to the Securities of any Series, and any Coupons
appertaining thereto, Outstanding on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"). For this purpose,
such covenant defeasance means that, with respect to the Outstanding Securities
of any Series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such Sections, whether
directly or indirectly by reason of any reference elsewhere herein to such
Sections or by reason of any reference in such Sections to any other provision
herein or in any other document and such omission to comply shall not constitute
an Event of Default under Section 5.1, but the remainder of this Indenture and
such Securities and Coupons shall be unaffected thereby. The following shall be
the conditions to application of this subsection (C) of this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the holders of the Securities of such series and Coupons
appertaining thereto, (i) cash in an amount, or (ii) in the case of any
series of Securities the payments on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such times and
in such amounts as will insure the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all
Securities of such series and Coupons appertaining thereto and (B) any
mandatory sinking fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of
such series.
(b) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities shall
have occurred and be continuing on the date of such deposit or, insofar as
subsections 5.1(d) and (e) are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period).
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(c) Such covenant defeasance shall not cause the Trustee to have a
conflicting interest for purposes of the Trust Indenture Act of 1939 with
respect to any securities of the Issuer.
(d) Such covenant defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or by which it is bound.
(e) Such covenant defeasance shall not cause any Securities then listed
on any registered national securities exchange under the Securities Exchange
Act of 1934, as amended, to be delisted.
(f) The Issuer shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel to the effect that the Holders of the
Securities of such series and Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(g) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the covenant defeasance contemplated by
this provision have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
---------------------------------------------------------
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
- ----------
pursuant to Section 10.1 shall be held in trust and applied by it to the payment
to the Holders of the particular Securities of such series and of Coupons
appertaining thereto for the payment or redemption of which such moneys have
been deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
----------------------------------------
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys 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 repaid to it or paid to the Trustee and
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thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent
--------------------------------------------------
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
- -----------------------
any paying agent for the payment of the principal of or interest on any Security
of any series or Coupons attached thereto and not applied but remaining
unclaimed for two years after the date upon which such principal 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 law, be repaid to the Issuer by the Trustee for
such series or such paying agent, and the Holder of the Securities of such
series and of any Coupons appertaining thereto 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 shall thereupon cease; provided, however, that the
-------- -------
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Securities at their addresses as they shall
appear on the Security register, and (b) in respect of Unregistered Securities
of any series, shall at the expense of the Issuer cause to be published once, in
an Authorized Newspaper in the Borough of Manhattan, The City of New York and
once in an Authorized Newspaper in London (and if required by Section 3.8, once
in an Authorized Newspaper in Luxembourg), notice, that such moneys remain and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing or publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
------------------------------------------
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
Obligations.
SECTION 10.6 Reinstatement Provision. If the Trustee or any paying
-----------------------
agent is unable to apply any money in accordance with this Article 10 by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Issuer's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 10.1 until
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such time as the Trustee or such paying agent is permitted to apply all such
money in accordance with Section 10.2; provided, however, that if the Issuer
makes any payment of interest on or principal of any Security following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or such paying agent.
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 and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue
of the Securities and the Coupons appertaining thereto.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
--------------------------------------------------------
and Holders of Securities and Coupons. Nothing in this Indenture, in the
- -------------------------------------
Securities or in the Coupons appertaining thereto, 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 or
Coupons, if any, 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 or Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All
----------------------------------------------------
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
------------------------------------------------------
Securities and Coupons. Any notice or demand which by
- ----------------------
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any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities or Coupons 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 American Home
Products Corporation, 685 Third Avenue, New York, New York 10017, Attention:
General Counsel. Any notice, direction, request or demand by the Issuer or any
Holder of Securities or Coupons to or upon the Trustee shall be deemed to have
been sufficiently given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee with the Issuer)
to Manufacturers Hanover Trust Company, 450 West 33rd Street, 15th Floor, New
York, New York 10001, Attention: Corporate Trust Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, 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 such 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 to Holders of
Unregistered Securities, such notice shall be sufficiently given if published at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.8, at least once in an Authorized Newspaper in
Luxembourg). 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 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 reasonably satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 Officer's Certificates and Opinions of Counsel; Statements
-----------------------------------------------------------
to Be Contained Therein. Upon any
- -----------------------
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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
Officer's 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 giving 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.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to
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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 and directed to 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
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon shall not be a Business Day, 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 and to the extent that any provision of this
- ---------------------
Indenture limits, qualifies, or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this Indenture by
operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
SECTION 11.8 New York Law to Govern. This Indenture and each Security
----------------------
and Coupon 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
such 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.
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SECTION 11.11. Securities in a Foreign Currency or in ECU. Unless
-------------------------------------------
otherwise specified in an Officer's Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; provided, however, in the case of ECUs,
-------- -------
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations or,
in the case of ECUs, rates of exchange as the Trustee shall deem appropriate.
The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a series denominated in a currency
other than Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding on the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the fullest
-----------------
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the
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principal of or interest on the Securities of any series (the "Required
Currency") into a currency in which a judgment will be rendered (the "Judgment
Currency") the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day,
then, to the extent permitted by applicable law, the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Saturday, Sunday or a legal holiday in The City of
New York or a day on which banking institutions in The City of New York are
authorized or required by law or executive order to close.
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 Registered 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
77
<PAGE>
date fixed for redemption to such Holders of Securities of such series at their
last addresses as they shall appear upon the registry books. Notice of
redemption to all Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London (and, if required by Section 3.8, in an
Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor 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 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 principal
amount of each Security of such series held by such Holder 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
and, in the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, 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 such 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 shall
be given by the Issuer or, at the Issuer's request, by the Trustee in the name
and at the expense of the Issuer.
On or before 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
78
<PAGE>
Securities of such series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 70 days prior to the date fixed for
redemption an Officer's Certificate stating the aggregate principal amount of
Securities to be redeemed and, in the case of an optional redemption the date of
such redemption. In case of a redemption, at the election of the Issuer prior
to the expiration of any restriction on such redemption, the Issuer shall
deliver to the Trustee, prior to the giving of any notice of redemption to
Holders pursuant to this Section, an Officer's Certificate stating that such
restriction has been complied with.
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 multiples 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 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 the unmatured Coupons, if any, appertaining thereto shall be void,
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,
together with all Coupons, if any, appertaining thereto maturing after the date
79
<PAGE>
fixed for redemption, 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
--------
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 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 Issue Discount Security) borne by
such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
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 an Officer's Certificate 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 the Securities of any
series is herein referred to as a
80
<PAGE>
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of the Securities of any series is herein
referred to as an "optional sinking fund payment". The date on which a sinking
fund payment is to be made 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, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the 70th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officer's Certificate
(which need not contain the statements required by Section 11.5) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series has theretofore been so 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 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 Officer's Certificate (or
reasonably promptly thereafter if acceptable to the Trustee). Such Officer's
Certificate shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein
81
<PAGE>
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such 70th day, to deliver such Officer's
Certificate 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)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or the equivalent thereof in any Foreign Currency or ECU) or a lesser
sum in Dollars (or the equivalent thereof in any Foreign Currency or ECU) 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 the equivalent thereof in any Foreign Currency or ECU) or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) 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 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 for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. 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.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for
82
<PAGE>
the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving 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 such Securities.
In case such Event of Default shall have been waived as provided in Section 5.10
or the default cured on or before the 60th 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 April 10, 1992.
AMERICAN HOME PRODUCTS CORPORATION
By:
-------------------------------
Title:
[CORPORATE SEAL]
Attest:
By:
--------------------------
Title:
83
<PAGE>
MANUFACTURERS HANOVER TRUST COMPANY,
Trustee
By:
---------------------------------
Vice President
[CORPORATE SEAL]
Attest:
By:
--------------------------
Title:
84
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this of , 199 before me personally came
---- ---------- - ------------
, to me personally known, who, being by me duly sworn, did depose and say
- ------
that he resides at ; that he is the of American Home
---------- ----------
Products Corporation, one of the corporations 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.
[NOTARIAL SEAL]
--------------------------
Notary Public
85
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this of , 199 before me personally came
---- ---------- - ------------
, to me personally known, who, being by me duly sworn, did depose and say
- ------
that he resides at ; that he is a Vice President of Manufacturers
----------
Hanover Trust Company, one of the corporations 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.
[NOTARIAL SEAL]
--------------------------
Notary Public
86
<PAGE>
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 April 10, 1992.
AMERICAN HOME PRODUCTS CORPORATION
By: /s/ John R. Considine
---------------------------
Title: Vice President and
Treasurer
[CORPORATE SEAL]
Attest:
By: /s/ Carol G. Emerling
--------------------------
Title: Secretary
MANUFACTURERS HANOVER TRUST COMPANY,
Trustee
By: /s/ F. J. Grippo
---------------------------
Vice President
[CORPORATE SEAL]
Attest:
By: /s/ Elinor Toronto Doyle
----------------------------
Title: Trust Officer
87
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 10th of April, 1992 before me personally came John R.
Considine, to me personally known, who, being by me duly sworn, did depose and
say that he resides at Stamford, Connecticut; that he is the Vice President of
American Home Products Corporation, one of the corporations 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.
[NOTARIAL SEAL]
/s/ Dorothy L. Miller
--------------------------
Notary Public
88
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 10th of April, 1992 before me personally came F. J. Grippo, to
me personally known, who, being by me duly sworn, did depose and say that he
resides at 213 Oriole Drive, Montgomery, New York 12549; that he is a Vice
President of Manufacturers Hanover Trust Company, one of the corporations
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.
[NOTARIAL SEAL]
/s/ G. John Kirsch
--------------------------
Notary Public
89
Exhibit 4(b)
Conformed Copy
--------------
SUPPLEMENTAL INDENTURE, dated October 13, 1992, between AMERICAN HOME
PRODUCTS CORPORATION, a Delaware corporation (the "Issuer") and CHEMICAL BANK
(as successor to MANUFACTURERS HANOVER TRUST COMPANY), a corporation duly
organized and existing under the laws of the State of New York, as trustee (the
"Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee have duly executed and delivered an
Indenture, dated as of April 10, 1992 (the "Indenture"), providing for the
authentication, issuance, delivery and administration of unsecured debentures,
notes or other evidences of indebtedness to be issued in one or more series by
the Issuer (the "Securities"); and
WHEREAS, the Issuer desires to amend the provisions of the Indenture to
correct the list of corporate officers authorized to execute and deliver
Securities in accordance with the Indenture and to modify the procedures for
such execution; and
WHEREAS, Section 8.1 of the Indenture expressly permits the Issuer and the
Trustee to enter into one or more supplemental indentures for the purposes,
inter alia, of correcting any defective provisions of the Indenture or make
provisions in the Indenture deemed necessary or desirable, and permits the
execution of such supplemental indentures without the consent of the holders of
any Securities then outstanding; and
WHEREAS, for the purposes hereinabove recited, and pursuant to due
corporate action, the Issuer has duly determined to execute and deliver to the
Trustee this supplemental indenture; and
WHEREAS, all conditions and requirements necessary to make this
supplemental indenture a valid, legal and binding instrument in accordance with
its terms have been done and performed, and the execution and delivery hereof
have been in all respects duly authorized;
NOW THEREFORE, in consideration of the premises, the Issuer and the Trustee
mutually covenant and agree as follows:
SECTION 1. All terms contained in this supplemental indenture shall,
except as specifically provided herein or except as the context may otherwise
require, have the meanings given to such terms in the Indenture.
<PAGE>
SECTION 2. The first three sentences of Section 2.5 of Article One of the
Indenture is hereby amended in its entirety, so that as amended, it shall be and
read as follows:
" SECTION 2.5 Execution of Securities. The Securities and, if
------------------------
applicable, each Coupon appertaining thereto shall be signed on behalf of
the Issuer by the chairman or vice chairman of its Board of Directors or
its president or any vice president or its treasurer, which may, but need
not, be attested. Such signature(s) may be the manual or facsimile
signature(s) of the present or any future such officer(s). The seal of the
Issuer, if used, may be in the form of a facsimile thereof and my be
impressed, affixed, imprinted or otherwise reproduced on the Securities."
SECTION 3. This supplemental indenture may be executed in several
counterparts, each of which shall be an original, and all collectively but one
instrument.
IN WITNESS WHEREOF, the parties hereto have cause this supplemental
indenture to be executed, and their respective corporate seals to be hereunto
affixed and attested, all as of October 13, 1992.
AMERICAN HOME PRODUCTS CORPORATION
By /s/ John R. Considine
----------------------
Title: Vice President - Finance
[Corporate Seal]
Attest:
By /s/ Carol G. Emerling
---------------------
Title: Secretary
CHEMICAL BANK
Trustee
By /s/ F. J. Grippo
----------------
Title: Vice President
2
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 13th of October, 1992 before me personally came John R. Considine,
to me personally known, who, being by me duly sworn, did depose and say that he
resides at Stamford, Connecticut; that he is a Vice President of American Home
Products Corporation, one of the corporations 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.
[Notarial Seal]
/s/ Theodore R. Giuttari
------------------------
Notary Public
3
Exhibit 4(c)
DRAFT
12/30/94
[FORM OF FACE OF SECURITY]
Floating Rate Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR
THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE
DISCOUNT ("OID") RULES.
AMERICAN HOME PRODUCTS CORPORATION
MEDIUM-TERM NOTE, SERIES
-
(Floating Rate)
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
SPREAD (PLUS INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
OR MINUS):
INITIAL INTEREST RESET DATE: INTEREST RESET PERIOD:
ALTERNATE RATE MAXIMUM INTEREST RATE: INTEREST RESET DATES:
EVENT SPREAD:
SPREAD MINIMUM INTEREST RATE: CALCULATION AGENT:
MULTIPLIER:
INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
INITIAL REDEMPTION TOTAL AMOUNT OF OID:
PERCENTAGE:
ANNUAL REDEMPTION ORIGINAL YIELD TO
PERCENTAGE REDUCTION: MATURITY:
OPTIONAL REPAYMENT DATE(S): INITIAL ACCRUAL PERIOD OID:
- -------------------
* Applies only if this Note is a Registered Global Security.
<PAGE>
American Home Products Corporation, a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to , or registered assignees, the principal sum of
-------------
on the Maturity Date specified above (except to the extent
- --------------
redeemed or repaid prior to the Maturity Date) and to pay interest thereon, from
the Interest Accrual Date specified above at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above, and thereafter at a rate per annum determined in accordance
with the provisions specified on the reverse hereof until the principal hereof
is paid or duly made available for payment. The Issuer will pay interest in
arrears monthly, quarterly, semiannually or annually as specified above as the
Interest Payment Period on each Interest Payment Date (as specified above),
commencing with the first Interest Payment Date next succeeding the Interest
Accrual Date specified above, and on the Maturity Date (or any redemption or
repayment date); provided, however, that if the Interest Accrual Date occurs
-------- -------
between a Record Date, as defined below, and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date succeeding the Interest Accrual Date to the registered holder of this Note
on the Record Date with respect to such second Interest Payment Date; and
provided, further, that if an Interest Payment Date or the Maturity Date or
- -------- -------
redemption or repayment date would fall on a day that is not a Business Day, as
defined on the reverse hereof, such Interest Payment Date, Maturity Date or
redemption or repayment date shall be the following day that is a Business Day,
except that if the Base Rate specified above is LIBOR and such next Business Day
falls in the next calendar month, the Interest Payment Date, Maturity Date or
redemption or repayment date shall be the immediately preceding day that is a
Business Day.
Interest on this Note will accrue from the most recent date to which
interest has been paid or duly provided for, or, if no interest has been paid or
duly provided for, from the Interest Accrual Date, until the principal hereof
has been paid or duly made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or not
a Business Day) (each such date a "Record Date"); provided, however, that
-------- -------
interest payable on the Maturity Date (or any redemption or repayment date) will
be payable to the person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the interest
due at the Maturity Date (or any redemption or repayment date) will be made in
immediately available funds upon
2
<PAGE>
surrender of this Note at the office or agency of the Paying Agent, as defined
on the reverse hereof, maintained for that purpose in the Borough of Manhattan,
The City of New York, or at such other paying agency as the Issuer may
determine. Payment of the principal of and premium, if any, and interest on
this Note will be made in the Specified Currency indicated above; provided,
--------
however, that U.S. dollar payments of interest, other than interest due at
- -------
maturity or any date of redemption or repayment, will be made by U.S. dollar
check mailed to the address of the person entitled thereto as such address shall
appear in the Note register. A holder of U.S. $10,000,000 or more in aggregate
principal amount of Notes having the same Interest Payment Date will be entitled
to receive payments of interest, other than interest due at maturity or any date
of redemption or repayment, by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Paying Agent in
writing not less than 15 calendar days prior to the applicable Interest Payment
Date. If this Note is denominated in a Specified Currency other than U.S.
dollars, payments of interest hereon will be made by wire transfer of
immediately available funds to an account maintained by the holder hereof with a
bank located outside the United States if appropriate wire transfer instructions
have been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date. If such wire transfer
instructions are not so received, such interest payments will be made by check
payable in such Specified Currency mailed to the address of the person entitled
thereto as such address shall appear in the Note register.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, as defined on the
reverse hereof, or be valid or obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
DATED: AMERICAN HOME PRODUCTS
CORPORATION
By
---------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
as Trustee
By
--------------------------
Authorized Officer
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[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes,
Series , having maturities more than nine months from the date of issue (the
-
"Notes") of the Issuer. The Notes are issuable under an indenture (the
"Indenture"), dated as of , 199 , between the Issuer and Manufacturers
--------- -
Hanover Trust Company, as Trustee (the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities of the Issuer, the Trustee
and holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed Manufacturers Hanover
Trust Company at its principal corporate trust office in The City of New York as
the paying agent (the "Paying Agent," which term includes any additional or
successor Paying Agent appointed by the Issuer) with respect to the Notes. The
terms of individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates, or otherwise, all as provided in the
Indenture. To the extent not inconsistent herewith, the terms of the Indenture
are hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs, will not be redeemable or subject to repayment at the
option of the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this Note may not
be redeemed prior to the Maturity Date. If so indicated on the face of this
Note, this Note may be redeemed in whole or in part at the option of the Issuer
on or after the Initial Redemption Date specified on the face hereof on the
terms set forth on the face hereof, together with interest accrued and unpaid
hereon to the date of redemption. If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage indicated on the face
hereof will be reduced on each anniversary of the Initial Redemption Date by the
Annual Redemption Percentage Reduction specified on the face hereof until the
redemption price of this Note is 100% of the principal amount hereof, together
with interest accrued and unpaid hereon to the date of redemption. Notice of
redemption shall be mailed to the registered holders of the Notes designated for
redemption at their addresses as the same shall appear on the Note register not
less than 30 nor more than 60 days prior to the date fixed for redemption,
subject to all the conditions and provisions of the Indenture. In the event of
redemption of this Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the cancellation hereof.
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<PAGE>
Unless otherwise indicated on the face of this Note, this Note shall
not be subject to repayment at the option of the holder prior to the Maturity
Date. If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 or, if this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment. For this Note to be repaid
at the option of the holder hereof, the Paying Agent must receive at its
principal corporate trust office in the Borough of Manhattan, The City of New
York, at least 15 but not more than 30 days prior to the date of repayment, (i)
this Note with the form entitled "Option to Elect Repayment" below duly
completed or (ii) a telegram, facsimile transmission or a letter from a member
of a national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal amount hereof,
the certificate number of this Note or a description of this Note's tenor and
terms, the principal amount hereof to be repaid, a statement that the option to
elect repayment is being exercised thereby and a guarantee that this Note,
together with the form entitled "Option to Elect Repayment" duly completed, will
be received by the Paying Agent not later than the fifth Business Day after the
date of such telegram, facsimile transmission or letter; provided, that such
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telegram, facsimile transmission or letter shall only be effective if this Note
and form duly completed are received by the Paying Agent by such fifth Business
Day. Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new Note or
Notes for the amount of the unpaid portion hereof shall be issued in the name of
the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in accordance with
the applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus or
minus the Spread, if any, or (ii) multiplied by the Spread Multiplier, if any,
specified on the face hereof. Commencing with the Initial Interest Reset Date
specified on the face hereof, the rate at which interest on this Note is payable
shall be reset as of each Interest Reset Date (as used herein, the term
"Interest Reset Date" shall include the Initial Interest Reset Date). The
Interest Reset Dates will be the Interest Reset Dates specified on the face
hereof; provided, however, that (i) the interest rate
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in effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate and (ii) the interest rate in
effect hereon for the 15 days immediately prior to the Maturity Date hereof (or,
with respect to any principal amount to be redeemed or repaid, any redemption or
repayment date) shall be that in effect on the fifteenth calendar day preceding
the Maturity Date hereof or such date of redemption or repayment, as the case
may be. If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be postponed to the next succeeding
day that is a Business Day, except that if the Base Rate specified on the face
hereof is LIBOR and such Business Day is in the next succeeding calendar month,
such Interest Reset Date shall be the next preceding Business Day. As used
herein, "Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close in The City of New York and (i) with
respect to Notes denominated in a Specified Currency other than U.S. dollars,
European Currency Units ("ECUs") or Australian dollars, in the capital city of
the country of the Specified Currency, (ii) with respect to Notes denominated in
ECUs, in Luxembourg, (iii) with respect to Notes denominated in Australian
dollars, in Sydney and (iv) with respect to Notes bearing interest calculated by
reference to LIBOR, in the City of London.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the CD Rate, Commercial
Paper Rate, Federal Funds Rate and Prime Rate will be the second Business Day
next preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated by
reference to LIBOR shall be the second London Banking Day preceding such
Interest Reset Date. As used herein, "London Banking Day" means any day on
which dealings in deposits in U.S. dollars are transacted in the London
interbank market. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the Treasury
Rate shall be the day of the week in which such Interest Reset Date falls on
which Treasury bills normally would be auctioned; provided, however, that if as
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a result of a legal holiday an auction is held on the Friday of the week
preceding such Interest Reset Date, the related Interest Determination Date
shall be such preceding Friday; and provided, further, that if an auction shall
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fall on any Interest Reset Date, then the Interest Reset Date shall instead be
the first Business Day following the date of such auction.
The "Calculation Date" pertaining to any Interest Determination Date
will be the earlier of the tenth calendar day after such Interest Determination
Date or the next succeeding Record Date after such Interest Determination Date
or, if either
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such day is not a Business Day, the next succeeding Business Day.
Determination of CD Rate. If the Base Rate specified on the face
------------------------
hereof is the CD Rate, the CD Rate with respect to this Note shall be determined
on each Interest Determination Date and shall be the rate on such date for
negotiable certificates of deposit having the Index Maturity specified on the
face hereof as published by the Board of Governors of the Federal Reserve System
in "Statistical Release H.15(519), Selected Interest Rates," or any successor
publication of the Board of Governors of the Federal Reserve System
("H.15(519)"), under the heading "CDs (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the CD Rate will be the rate on such
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity specified on the face hereof as published by the Federal Reserve Bank
of New York in its daily statistical release "Composite 3:30 P.M. Quotations for
U.S. Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If neither of such rates is published by 3:00 P.M.,
New York City time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to on
the face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such Interest Determination Date
for certificates of deposit in the denomination of U.S. $5,000,000 with a
remaining maturity closest to the Index Maturity specified on the face hereof of
three leading nonbank dealers in negotiable U.S. dollar certificates of deposit
in The City of New York selected by the Calculation Agent for negotiable
certificates of deposit of major United States money center banks of the highest
credit standing in the market for negotiable certificates of deposit; provided,
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however, that if the dealers selected as aforesaid by the Calculation Agent are
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not quoting as mentioned in this sentence, the rate of interest in effect for
the applicable period will be the same as the CD Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate specified on
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the face hereof is the Commercial Paper Rate, the Commercial Paper Rate with
respect to this Note shall be determined on each Interest Determination Date and
shall be the Money Market Yield (as defined herein) of the rate on such date for
commercial paper having the Index Maturity specified on the face hereof, as such
rate shall be published in H.15(519) under the heading "Commercial Paper," or if
not so published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Commercial Paper Rate shall
be the Money Market Yield of the rate on such Interest Determination Date for
commercial paper of the Index Maturity
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<PAGE>
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper." If neither of such rates is published by 3:00 P.M.,
New York City time, on such Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield of the arithmetic mean of the offered rates as
of 11:00 A.M., New York City time, on such Interest Determination Date of three
leading dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on the
face hereof, placed for an industrial issuer whose bond rating is " ," or the
--
equivalent, from a nationally recognized rating agency; provided, however, that
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if the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the rate of interest in effect for the applicable
period will be the same as the Commercial Paper Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable hereon shall be the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in accordance with
the following formula:
Money Market Yield = D x 360
------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the Index Maturity specified on the face hereof.
Determination of Federal Funds Rate. If the Base Rate specified on
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the face hereof is the Federal Funds Rate, the Federal Funds Rate with respect
to this Note shall be determined on each Interest Determination Date and shall
be the rate on such date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)," or, if not so published by 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the Federal Funds Rate will be the rate on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation Agent and
will be the arithmetic mean of the rates for the last transaction in overnight
Federal Funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal Funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
- -------- -------
Agent are not quoting as mentioned in this sentence, the rate of interest in
effect for the applicable
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<PAGE>
period will be the same as the Federal Funds Rate for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period, the rate
of interest payable hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face hereof
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is LIBOR, LIBOR with respect to this Note shall be determined on each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation Agent
shall determine the arithmetic mean of the offered rates for deposits
in United States dollars for the period of the Index Maturity
specified on the face hereof which appear on the Reuters Screen LIBO
Page at approximately 11:00 A.M., London time, on such Interest
Determination Date. "Reuters Screen LIBO Page," as used herein, means
the display designated as Page "LIBO" on the Reuters Monitor Money
Rates Service (or such other page as may replace the LIBO page on that
service for the purpose of displaying London interbank offered rates
of major banks).
(ii) If fewer than two offered rates appear on the Reuters Screen
LIBO Page, the Calculation Agent will request the principal London
offices of each of four major banks in the London interbank market, as
selected by the Calculation Agent, to provide the Calculation Agent
with its offered quotation for deposits in United States dollars for
the period of the Index Maturity, specified on the face hereof, to
prime banks in the London interbank market at approximately 11:00
A.M., London time, on such Interest Determination Date and in a
principal amount of not less than U.S. $1,000,000 that is
representative for a single transaction in such market at such time.
If at least two such quotations are provided, LIBOR will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR in respect of such Interest Determination Date will be
the arithmetic mean of the rates quoted by three major banks in The
City of New York selected by the Calculation Agent (after consultation
with the Issuer) at approximately 11:00 A.M., New York City time, on
such Interest Determination Date for loans in U.S. dollars to leading
European banks, for the period of the Index Maturity and in a
principal amount of not less than U.S. $1,000,000 that is
representative of a single transaction in such market at such time;
provided, however, that if fewer than three banks selected as
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aforesaid by the Calculation Agent are quoting as mentioned in this
sentence, LIBOR for such Interest Reset Period will be the same as
LIBOR for the immediately preceding Interest Reset Period (or, if
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<PAGE>
there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
Determination of Prime Rate. If the Base Rate specified on the face
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hereof is the Prime Rate, the Prime Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate set forth
in H.15(519) for such date opposite the caption "Bank Prime Loan." If such rate
is not so published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Prime Rate for such Interest
Determination Date will be the arithmetic mean of the rates of interest publicly
announced by each bank named on the Reuters Screen NYMF Page (as defined below)
as such bank's prime rate or base lending rate as in effect for such Interest
Determination Date as quoted on the Reuters Screen NYMF Page on such Interest
Determination Date, or, if fewer than four such rates appear on the Reuters
Screen NYMF Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days in the year divided by 360 as of the close of business on such Interest
Determination Date by at least two of the three major money center banks in The
City of New York selected by the Calculation Agent from which quotations are
requested. If fewer than two quotations are provided, the Prime Rate shall be
calculated by the Calculation Agent and shall be determined as the arithmetic
mean on the basis of the prime rates in The City of New York by the appropriate
number of substitute banks or trust companies organized and doing business under
the laws of the United States, or any State thereof, in each case having total
equity capital of at least U.S. $500 million and being subject to supervision or
examination by Federal or State authority, selected by the Calculation Agent to
quote such rate or rates. "Reuters Screen NYMF Page" means the display
designated as Page "NYMF" on the Reuters Monitor Money Rates Service (or such
other page as may replace the NYMF Page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks).
If in any month or two consecutive months the Prime Rate is not
published in H.15(519) and the banks or trust companies selected as aforesaid
are not quoting as mentioned in the preceding paragraph, the "Prime Rate" for
such Interest Reset Period will be the same as the Prime Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If this failure continues over three or more consecutive months, the
Prime Rate for each succeeding Interest Determination Date until the maturity or
redemption or repayment of this Note or, if earlier, until this failure ceases,
shall be LIBOR determined as if the Base Rate specified on the face hereof were
LIBOR, and the Spread, if any,
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shall be the number of basis points specified on the face hereof as the
"Alternate Rate Event Spread."
Determination of Treasury Rate. If the Base Rate specified on the
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face hereof is the Treasury Rate, the Treasury Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the rate
for the auction held on such date of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof, as
published in H.15(519) under the heading "Treasury Bills--auction average
(investment)," or if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the auction
average rate on such Interest Determination Date (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States Department
of the Treasury. In the event that the results of the auction of Treasury Bills
having the Index Maturity specified on the face hereof are not published or
reported as provided above by 3:00 P.M., New York City time, on such Calculation
Date or if no such auction is held on such Interest Determination Date, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three leading
primary United States government securities dealers selected by the Calculation
Agent for the issue of Treasury Bills with a remaining maturity closest to the
Index Maturity specified on the face hereof; provided, however, that if the
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dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate for such Interest Reset Date will
be the same as the Treasury Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event
be higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will
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become effective as of the next Interest Reset Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be; provided, however, that if
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the Interest Reset Period with respect to this Note is daily or weekly, interest
payable on any Interest Payment Date, other than interest payable on any date on
which principal hereof is payable, will include interest accrued through and
including the Record Date next preceding the applicable Interest Payment Date.
Accrued interest hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor shall
be computed by adding the interest factor calculated for each day in the period
for which interest is being paid. The interest factor for each such date shall
be computed by dividing the interest rate applicable to such day by 360 if the
Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate or
LIBOR, as specified on the face hereof, or by the actual number of days in the
year if the Base Rate is the Treasury Rate, as specified on the face hereof.
All percentages resulting from any calculation of the rate of interest on this
Note will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point (.0000001), with five one-millionths of a percentage point
rounded upward, and all dollar amounts used in or resulting from such
calculation on this Note will be rounded to the nearest cent (with one-half cent
rounded upward). The interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to any
other day is the interest rate from the immediately preceding Interest Reset
Date (or, if none, the Initial Interest Rate).
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
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unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, is issuable only in denominations of U.S. $[
------
] and any integral multiple of U.S. $1,000 in excess thereof. If this Note is
denominated in a Specified Currency other than U.S. dollars, then, unless a
higher minimum denomination is required by applicable law, it is issuable only
in denominations of the equivalent of U.S. $[ ] (rounded down to an
-------
integral multiple of 1,000 units of such Specified Currency), or any amount in
excess thereof which is an integral multiple of 1,000 units of such Specified
Currency, as determined by reference to
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<PAGE>
the noon dollar buying rate in New York City for cable transfers of such
Specified Currency published by the Federal Reserve Bank of New York (the
"Market Exchange Rate") on the Business Day immediately preceding the date of
issuance; provided, however, in the case of ECUs, the Market Exchange Rate shall
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be the rate of exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of the European
Communities, or any successor publication, on the Business Day immediately
preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its principal corporate trust office in The City of New
York a register for the registration and transfer of Notes. This Note may be
transferred at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder hereof in
person or by the holder's attorney duly authorized in writing, and thereupon the
Trustee shall issue in the name of the transferee or transferees, in exchange
herefor, a new Note or Notes having identical terms and provisions and having a
like aggregate principal amount in authorized denominations, subject to the
terms and conditions set forth herein; provided, however, that the Trustee will
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not be required (i) to register the transfer of or exchange any Note that has
been called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Indenture
with respect to the redemption of Notes. Notes are exchangeable at said office
for other Notes of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such exchanges and transfers
of Notes will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results from
such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to
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the Trustee, a new Note of like tenor will be issued by the Issuer in exchange
for the Note so mutilated or defaced, or in lieu of the Note so destroyed or
lost or stolen, but, in the case of any destroyed or lost or stolen Note, only
upon receipt of evidence satisfactory to the Trustee and the Issuer that such
Note was destroyed or lost or stolen and, if required, upon receipt also of
indemnity satisfactory to each of them. All expenses and reasonable charges
associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Note shall be borne by the owner of the
Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default (as defined in
the Indenture) due to the default in payment of principal of, or interest on,
any series of debt securities issued under the Indenture, including the series
of Medium-Term Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Indenture shall have occurred and
be continuing, either the Trustee or the holders of not less than 25% in
aggregate principal amount of all affected debt securities issued under the
Indenture then outstanding (treated as one class) may then declare the principal
of all debt securities of all such series and interest accrued thereon to be due
and payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Indenture
applicable to all outstanding debt securities issued thereunder, including this
Note, or due to certain events of bankruptcy, insolvency and reorganization of
the Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of all debt
securities issued under the Indenture then outstanding (treated as one class)
may declare the principal of all such debt securities and interest accrued
thereon to be due and payable immediately, but upon certain conditions such
declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal of, or interest on, such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
The Indenture permits the Issuer and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
debt securities of all series issued under the Indenture then outstanding and
affected (voting as one class), to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each series
so affected; provided that the Issuer and the Trustee may not, without the
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consent of the holder of each outstanding debt security affected thereby, (a)
extend the final maturity of any such debt security, or reduce the principal
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<PAGE>
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption or repayment thereof, or
change the currency of payment thereof, or impair or affect the right of any
holder to institute suit for the payment thereof; or (b) reduce the aforesaid
percentage in principal amount of debt securities the consent of the holders of
which is required for any such supplemental indenture; or (c) modify any of the
foregoing provisions except to increase any such percentage or to provide that
other provisions cannot be modified or waived without the consent of each
affected holder.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate on the date of such payment or, if the Market Exchange Rate is not
available on such date, as of the most recent practicable date. Any payment
made under such circumstances in U.S. dollars where the required payment is in a
Specified Currency other than U.S. dollars will not constitute an Event of
Default.
If payment in respect of this Note is required to be made in ECUs and
ECUs are unavailable due to the imposition of exchange controls or other
circumstances beyond the Issuer's control or are no longer used in the European
Monetary System, then all payments in respect of this Note shall be made in U.S.
dollars until ECUs are again available or so used. The amount of each payment
in U.S. dollars shall be computed on the basis of the equivalent of the ECU in
U.S. dollars, determined as described below, as of the second Business Day prior
to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Issuer or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU was
used in the European Monetary System. The equivalent of the ECU in U.S. dollars
shall be calculated by aggregating the U.S. dollar equivalents of the
Components. The U.S. dollar equivalent of each of the Components shall be
determined by the Issuer or such agent on the basis of the most recently
available Market Exchange Rates for such Components.
16
<PAGE>
If the official unit of any Component is altered by way of combination
or subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components 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 appropriate amounts of the consolidated component currencies
expressed in such single currency. If any Component is divided into two or more
currencies, the amount of the original component currency shall be replaced by
the appropriate amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original component currency.
All determinations referred to above made by the Issuer or its agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and binding on the
holder of this Note.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the Notes.
The Issuer may designate other agencies for the payment of said principal,
premium and interest at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations of
such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if any,
on any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such moneys shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
with respect to such moneys shall thereupon cease, without, however, limiting in
any way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair
the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place and
rate, and in the coin or currency, herein prescribed unless otherwise agreed
17
<PAGE>
between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture, or in this Note, or because of the indebtedness
evidenced hereby, 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, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
18
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-...........Custodian...............
(Cust.) (Minor)
Under Uniform Gifts to Minors Act....................
(State)
Additional abbreviations may also be used though not in the above
list.
--------------------
19
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
:
- ----------------------------------
:
:
- ----------------------------------------------------------------
- ----------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF
ASSIGNEE]
- -----------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
- -----------------------------------------------------------------
constituting and appointing such person attorney to transfer
- -----------------------------------------------------------------
such Note on the books of the Issuer, with full power of
- -----------------------------------------------------------------
substitution in the premises.
Dated:
-------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
20
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
---
; and specify the denomination or denominations (which shall
- --------------------
not be less than the minimum authorized denomination) of the Notes to be issued
to the holder for the portion of the within Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid): .
---------------------------------
Dated:
--------------------- --------------------------------
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as written
upon the face of the within
instrument in every particular
without alteration or enlargement.
21
Exhibit 4(d)
DRAFT
12/30/94
[FORM OF FACE OF SECURITY]
Fixed Rate Note
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP: *
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO MATURITY" AND
"INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) SET
FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
AMERICAN HOME PRODUCTS CORPORATION
MEDIUM-TERM NOTE, SERIES
--
(Fixed Rate)
ORIGINAL INITIAL REDEMPTION INTEREST RATE: ORIGINAL MATURITY
ISSUE DATE: DATE: DATE:
INTEREST INITIAL REDEMPTION APPLICABILITY OF OPTIONAL
ACCRUAL PERCENTAGE: MODIFIED PAYMENT REPAYMENT
DATE: UPON ACCELERATION: DATE(S):
TOTAL ANNUAL REDEMPTION If yes, state
AMOUNT PERCENTAGE Issue Price:
OF OID: REDUCTION:
ORIGINAL YIELD SINKING SPECIFIED APPLICABILITY OF
TO MATURITY: FUND: CURRENCY: ANNUAL INTEREST
PAYMENTS:
INITIAL ACCRUAL
PERIOD OID:
APPLICABILITY OF
ISSUER'S OPTION TO
EXTEND ORIGINAL
MATURITY DATE:
If yes, state Final
Maturity Date:
- ------------------
* Applies only if this Note is a Registered Global Security.
<PAGE>
American Home Products Corporation, a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to , or registered assignees, the principal sum of
------- ------
, on the Original Maturity Date specified above or, if the maturity hereof is
- ---
extended in accordance with the procedures set forth below to an Extended
Maturity Date, as defined below, on such Extended Maturity Date (except to the
extent previously redeemed or repaid) and to pay interest thereon at the
Interest Rate per annum specified above or, if the interest rate hereon is reset
or re-established in connection with an extension of maturity in accordance with
the procedures specified on the reverse hereof, at the interest rate per annum
determined pursuant to such procedures, from the Interest Accrual Date specified
above until the principal hereof is paid or duly made available for payment
(except as provided below), semiannually in arrears on the first day of
-----
and in each year (each such date an "Interest Payment Date") commencing
-------
on the Interest Payment Date next succeeding the Interest Accrual Date specified
above, and at maturity (or on any redemption or repayment date); provided,
--------
however, that if the Interest Accrual Date occurs between a Record Date, as
- -------
defined below, and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date succeeding the Interest
Accrual Date to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date; and provided, further, that if
-------- -------
this Note is subject to "Annual Interest Payments," interest payments shall be
made annually in arrears and the term "Interest Payment Date" shall be deemed to
mean the first day of in each year.
----
Interest on this Note will accrue from the most recent Interest Payment
Date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from the Interest Accrual Date, until the
principal hereof has been paid or duly made available for payment (except as
provided below). The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, subject to certain exceptions described
herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Interest Payment Date (whether or not a Business
Day) (each such date a "Record Date"); provided, however, that interest payable
-------- -------
at maturity (or on any redemption or repayment date) will be payable to the
person to whom the principal hereof shall be payable. As used herein, "Business
Day" means any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions are authorized or required by
law or regulation to close in The City of New York and (i) with respect to Notes
denominated in a Specified Currency other than U.S. dollars, Australian dollars
or European Currency Units ("ECUs"), in the capital city of the country of the
2
<PAGE>
Specified Currency, (ii) with respect to Notes denominated in Australian
dollars, in Sydney and (iii) with respect to Notes denominated in ECUs, in
Luxembourg and that is not a non-ECU clearing day, as determined by the ECU
Banking Association in Paris.
Payment of the principal of this Note, any premium and the interest due at
maturity (or on any redemption or repayment date) will be made in immediately
available funds upon surrender of this Note at the office or agency of the
Paying Agent, as defined on the reverse hereof, maintained for that purpose in
the Borough of Manhattan, The City of New York, or at such other paying agency
as the Issuer may determine. Payment of the principal of and premium, if any,
and interest on this Note will be made in the Specified Currency indicated
above; provided, however, that U.S. dollar payments of interest, other than
-------- -------
interest due at maturity or on any date of redemption of repayment, will be made
by U.S. dollar check mailed to the address of the person entitled thereto as
such address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest Payment
Date will be entitled to receive payments of interest, other than interest due
at maturity or on any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received by the Paying Agent in writing not less than 15 calendar days prior to
the applicable Interest Payment Date. If this Note is denominated in a
Specified Currency other than U.S. dollars, payments of interest hereon will be
made by wire transfer of immediately available funds to an account maintained by
the holder hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Paying Agent in writing not
less than 15 calendar days prior to the applicable Interest Payment Date. If
such wire transfer instructions are not so received, such interest payments will
be made by check payable in such Specified Currency mailed to the address of the
person entitled thereto as such address shall appear in the Note register.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Note shall
not be entitled to any benefit under the Indenture, as defined on the reverse
hereof, or be valid or obligatory for any purpose.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed
under its corporate seal.
DATED: AMERICAN HOME PRODUCTS CORPORATION
By
--------------------------
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
as Trustee
By
---------------------------
Authorized Officer
4
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes, Series
, having maturities more than nine months from the date of issue (the "Notes")
of the Issuer. The Notes are issuable under an indenture (the "Indenture"),
dated as of , 199 , between the Issuer and Manufacturers Hanover Trust
----- -
Company, as Trustee (the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed Manufacturers Hanover Trust Company at its
principal corporate trust office in The City of New York as the paying agent
(the "Paying Agent," which term includes any additional or successor Paying
Agent appointed by the Issuer) with respect to the Notes. The terms of
individual Notes may vary with respect to interest rates, interest rate
formulas, issue dates, maturity dates or otherwise, all as provided in the
Indenture. To the extent not inconsistent herewith, the terms of the Indenture
are hereby incorporated by reference herein.
Unless otherwise provided on the face hereof, this Note will not be
subject to any sinking fund. If so indicated on the face of this Note, this
Note will be subject to a sinking fund in accordance with the following terms:
[insert terms]. Unless otherwise provided on the face hereof in accordance with
the provisions of the following two paragraphs, this Note will not be redeemable
or subject to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be redeemed in
whole or in part at the option of the Issuer on or after the Initial Redemption
Date specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption
(except as provided below). If this Note is subject to "Annual Redemption
Percentage Reduction," the Initial Redemption Percentage indicated on the face
hereof will be reduced on each anniversary of the Initial Redemption Date by the
Annual Redemption Percentage Reduction specified on the face hereof until the
redemption price of this Note is 100% of the principal amount hereof, together
with interest accrued and unpaid hereon to the date of redemption (except as
provided below). Notice of redemption shall be mailed to the registered holders
of the Notes designated for redemption at their addresses as the same shall
appear on the Note register not less than 30 nor more than 60 days prior to the
date fixed for redemption, subject to all the conditions and provisions of the
Indenture. In the event of
5
<PAGE>
redemption of this Note in part only, a new Note or Notes for the amount of the
unredeemed portion hereof shall be issued in the name of the holder hereof upon
the cancellation hereof.
Notwithstanding the foregoing, this Note may be redeemed in accordance
with the terms of any Extension Notice, as defined below, sent to the holder
hereof as described below.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments of
$1,000 or, if this Note is denominated in a Specified Currency other than U.S.
dollars, in increments of 1,000 units of such Specified Currency (provided that
any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Paying Agent
must receive at its principal corporate trust office in the Borough of
Manhattan, The City of New York, at least 15 but not more than 30 days prior to
the date of repayment, (i) this Note with the form entitled "Option to Elect
Repayment" below duly completed or (ii) a telegram, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust company
in the United States setting forth the name of the holder of this Note, the
principal amount hereof, the certificate number of this Note or a description of
this Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that this Note, together with the form entitled "Option to Elect
Repayment" duly completed, will be received by the Paying Agent not later than
the fifth Business Day after the date of such telegram, facsimile transmission
or letter; provided, that such telegram, facsimile transmission or letter shall
--------
only be effective if this Note and form duly completed are received by the
Paying Agent by such fifth Business Day. Exercise of such repayment option by
the holder hereof shall be irrevocable. In the event of repayment of this Note
in part only, a new Note or Notes for the amount of the unpaid portion hereof
shall be issued in the name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, the Issuer has the option to
extend the Original Maturity Date hereof for one or more periods of one or more
whole years (each an "Extension Period") up to but not beyond the Final Maturity
Date specified on the face hereof and in connection therewith to establish a new
6
<PAGE>
interest rate and new redemption provisions for the Extension Period.
The Issuer may exercise such option by notifying the Paying Agent of such
exercise at least 45 but not more than 60 days prior to the Original Maturity
Date or, if the maturity hereof has already been extended, prior to the maturity
date then in effect (an "Extended Maturity Date"), such notice to be accompanied
by the form of the Extension Notice referred to below. No later than 30 days
prior to the Original Maturity Date or an Extended Maturity Date, as the case
may be (each, a "Maturity Date"), the Paying Agent will mail to the holder
hereof a notice (the "Extension Notice") relating to such Extension Period, by
first class mail, postage prepaid, setting forth (a) the election of the Issuer
to extend the maturity of this Note; (b) the new Extended Maturity Date; (c) the
interest rate applicable to the Extension Period; and (d) the provisions, if
any, for redemption during the Extension Period, including the date or dates on
which, the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the
Paying Agent of an Extension Notice to the holder of this Note, the maturity
hereof shall be extended automatically, and, except as modified by the Extension
Notice and as described in the next paragraph, this Note will have the same
terms it had prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 10:00 A.M., New York City
time, on the twentieth calendar day prior to the Maturity Date in effect
immediately preceding the mailing of the applicable Extension Notice (or if such
day is not a Business Day, not later than 10:00 A.M., New York City time, on the
immediately succeeding Business Day), the Issuer may, at its option, revoke the
interest rate provided for in such Extension Notice and establish a higher
interest rate for the Extension Period by causing the Paying Agent to send
notice of such higher interest rate to the holder of this Note by first class
mail, postage prepaid, or by such other means as shall be agreed between the
Issuer and the Paying Agent. Such notice shall be irrevocable. All Notes with
respect to which the Maturity Date is extended in accordance with an Extension
Notice will bear such higher interest rate for the Extension Period, whether or
not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder of this
Note will have the option to require the Issuer to repay this Note on the
Maturity Date in effect immediately preceding the mailing of the applicable
Extension Notice at a price equal to the principal amount hereof plus any
accrued and unpaid interest to such date. In order for this Note to be so
repaid on such Maturity Date, the holder hereof must follow the procedures set
forth above for optional repayment, except that
7
<PAGE>
the period for delivery of this Note or notification to the Paying Agent shall
be at least 25 but not more than 35 days prior to the Maturity Date in effect
immediately preceding the mailing of the applicable Extension Notice and except
that if the holder hereof has tendered this Note for repayment pursuant to this
paragraph he may, by written notice to the Paying Agent, revoke any such tender
for repayment until 3:00 P.M., New York City time, on the twentieth calendar day
prior to the Maturity Date then in effect (or, if such day is not a Business
Day, until 3:00 P.M., New York City time, on the immediately succeeding Business
Day).
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Note will be computed and paid on the basis of a 360-day year of twelve 30-day
months.
In the case where the Interest Payment Date or the Maturity Date (or any
redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal otherwise payable on such date 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 Interest Payment Date or on the
Maturity Date (or any redemption or repayment date), and no interest on such
payment shall accrue for the period from and after the Interest Payment Date or
the Maturity Date (or any redemption or repayment date) to such next succeeding
Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
---- -----
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange hereof,
is issuable only in fully registered form, without coupons, and, if denominated
in U.S. dollars, is issuable only in denominations of U.S. $[ ] and any
-------
integral multiple of U.S. $1,000 in excess thereof. If this Note is denominated
in a Specified Currency other than U.S. dollars, then, unless a higher minimum
denomination is required by applicable law, it is issuable only in denominations
of the equivalent of U.S. $[ ] (rounded down to an integral multiple of
-------
1,000 units of such Specified Currency), or any amount in excess thereof which
is an integral multiple of 1,000 units of such Specified Currency, as determined
by reference to the noon dollar buying rate in New York City for cable transfers
of such Specified Currency published by the Federal Reserve Bank
8
<PAGE>
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance; provided, however, in the case of ECUs, the
-------- -------
Market Exchange Rate shall be the rate of exchange determined by the Commission
of the European Communities (or any successor thereto) as published in the
Official Journal of the European Communities, or any successor publication, on
the Business Day immediately preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the Trustee
will maintain at its principal corporate trust office in The City of New York a
register for the registration and transfer of Notes. This Note may be
transferred at the aforesaid office of the Trustee by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Trustee and duly executed by the registered holder hereof in
person or by the holder's attorney duly authorized in writing, and thereupon the
Trustee shall issue in the name of the transferee or transferees, in exchange
herefor, a new Note or Notes having identical terms and provisions and having a
like aggregate principal amount in authorized denominations, subject to the
terms and conditions set forth herein; provided, however, that the Trustee will
-------- -------
not be required (i) to register the transfer of or exchange any Note that has
been called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Indenture
with respect to the redemption of Notes. Notes are exchangeable at said office
for other Notes of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such exchanges and transfers
of Notes will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Trustee and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. The date of registration of any Note delivered upon any exchange or
transfer of Notes shall be such that no gain or loss of interest results from
such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new Note of like tenor will be issued by the Issuer
in exchange for the Note so mutilated or defaced, or in
9
<PAGE>
lieu of the Note so destroyed or lost or stolen, but, in the case of any
destroyed or lost or stolen Note, only upon receipt of evidence satisfactory to
the Trustee and the Issuer that such Note was destroyed or lost or stolen and,
if required, upon receipt also of indemnity satisfactory to each of them. All
expenses and reasonable charges associated with procuring such indemnity and
with the preparation, authentication and delivery of a new Note shall be borne
by the owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Indenture provides that, (a) if an Event of Default (as defined in
the Indenture) due to the default in payment of principal of, or interest on,
any series of debt securities issued under the Indenture, including the series
of Medium-Term Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Indenture shall have occurred and
be continuing, either the Trustee or the holders of not less than 25% in
aggregate principal amount of all affected debt securities issued under the
Indenture then outstanding (treated as one class) may then declare the principal
of all debt securities of all such series and interest accrued thereon to be due
and payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Indenture
applicable to all outstanding debt securities issued thereunder, including this
Note, or due to certain events of bankruptcy, insolvency and reorganization of
the Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of all debt
securities issued under the Indenture then outstanding (treated as one class)
may declare the principal of all such debt securities and interest accrued
thereon to be due and payable immediately, but upon certain conditions such
declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal of, or interest on, such debt
securities) by the holders of a majority in principal amount of the debt
securities of all affected series then outstanding.
If the face hereof indicates that this Note is subject to "Modified
Payment upon Acceleration," then (i) if the principal hereof is declared to be
due and payable as described in the preceding paragraph, the amount of principal
due and payable with respect to this Note shall be limited to the aggregate
principal amount hereof multiplied by the sum of the Issue Price specified on
the face hereof (expressed as a percentage of the aggregate principal amount)
plus the original issue discount amortized from the Interest Accrual Date to the
date of declaration, which amortization shall be calculated using the "interest
method" (computed in accordance with generally accepted accounting principles in
effect on the date of declaration), (ii) for the
10
<PAGE>
purpose of any vote of securityholders taken pursuant to the Indenture prior to
the acceleration of payment of this Note, the principal amount hereof shall
equal the amount that would be due and payable hereon, calculated as set forth
in clause (i) above, if this Note were declared to be due and payable on the
date of any such vote and (iii) for the purpose of any vote of securityholders
taken pursuant to the Indenture following the acceleration of payment of this
Note, the principal amount hereof shall equal the amount of principal due and
payable with respect to this Note, calculated as set forth in clause (i) above.
The Indenture permits the Issuer and the Trustee, with the consent of the
holders of not less than a majority in aggregate principal amount of the debt
securities of all series issued under the Indenture then outstanding and
affected (voting as one class), to execute supplemental indentures adding any
provisions to or changing in any manner the rights of the holders of each series
so affected; provided that the Issuer and the Trustee may not, without the
--------
consent of the holder of each outstanding debt security affected thereby, (a)
extend the final maturity of any such debt 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 or repayment thereof, or
change the currency of payment thereof, or impair or affect the right of any
holder to institute suit for the payment thereof; or (b) reduce the aforesaid
percentage in principal amount of debt securities the consent of the holders of
which is required for any such supplemental indenture; or (c) modify any of the
foregoing provisions except to increase any such percentage or to provide that
other provisions cannot be modified or waived without the consent of each
affected holder.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate on the date of such payment or, if the Market Exchange Rate is not
available on such date, as of the most recent practicable date. Any payment
made under such circumstances in U.S. dollars where the required payment is in a
Specified Currency other than U.S. dollars will not constitute an Event of
Default.
If payment in respect of this Note is required to be made in ECUs and
ECUs are unavailable due to the imposition of exchange controls or other
circumstances beyond the Issuer's
11
<PAGE>
control or are no longer used in the European Monetary System, then all payments
in respect of this Note shall be made in U.S. dollars until ECUs are again
available or so used. The amount of each payment in U.S. dollars shall be
computed on the basis of the equivalent of the ECU in U.S. dollars, determined
as described below, as of the second Business Day prior to the date on which
such payment is due.
The equivalent of the ECU in U.S. dollars as of any date shall be
determined by the Issuer or its agent on the following basis. The component
currencies of the ECU for this purpose (the "Components") shall be the currency
amounts that were components of the ECU as of the last date on which the ECU was
used in the European Monetary System. The equivalent of the ECU in U.S. dollars
shall be calculated by aggregating the U.S. dollar equivalents of the
Components. The U.S. dollar equivalent of each of the Components shall be
determined by the Issuer or such agent on the basis of the most recently
available Market Exchange Rates for such Components.
If the official unit of any Component is altered by way of combination or
subdivision, the number of units of that currency as a Component shall be
divided or multiplied in the same proportion. If two or more Components 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 appropriate amounts of the consolidated component currencies
expressed in such single currency. If any Component is divided into two or more
currencies, the amount of the original component currency shall be replaced by
the appropriate amounts of such two or more currencies, the sum of which shall
be equal to the amount of the original component currency.
All determinations referred to above made by the Issuer or its agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and binding on the
holder of this Note.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the Notes.
The Issuer may designate other agencies for the payment of said principal,
premium and interest at such place or places (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations of
such agencies, if any are so designated.
12
<PAGE>
With respect to moneys paid by the Issuer and held by the Trustee or any
Paying Agent for payment of the principal of or interest or premium, if any, on
any Notes that remain unclaimed at the end of two years after such principal,
interest or premium shall have become due and payable (whether at maturity or
upon call for redemption or otherwise), (i) the Trustee or such Paying Agent
shall notify the holders of such Notes that such moneys shall be repaid to the
Issuer and any person claiming such moneys shall thereafter look only to the
Issuer for payment thereof and (ii) such moneys shall be so repaid to the
Issuer. Upon such repayment all liability of the Trustee or such Paying Agent
with respect to such moneys shall thereupon cease, without, however, limiting in
any way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Indenture shall alter or impair the
obligation of the Issuer, which is absolute and unconditional, to pay the
principal of, premium, if any, and interest on this Note at the time, place and
rate, and in the coin and currency, herein prescribed unless otherwise agreed
between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer, the
Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture, or in this Note, or because of the indebtedness evidenced
hereby, 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, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
13
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIF MIN ACT-.............Custodian...............
(Cust) (Minor)
Under Uniform Gifts to Minors Act.....................
(State)
Additional abbreviations may also be used though not in the above list.
-----------------------
14
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
- --------------------------------------
- --------------------------------------
- ------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF
ASSIGNEE]
- ------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably
- ------------------------------------------------------------
constituting and appointing such person attorney to transfer
- ------------------------------------------------------------
such Note on the books of the Issuer, with full power of
- ------------------------------------------------------------
substitution in the premises.
Dated:
-----------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon
the face of the within Note in every
particular without alteration or
enlargement or any change whatsoever.
15
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its terms
at a price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned at
- -----------------------------------------------------------------
- -----------------------------------------------------------------
- -----------------------------------------------------------------
(Please print or typewrite
name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
----
; and specify the denomination or denominations (which shall not be
- ----------
less than the minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not being
repaid): .
------------------
Dated:
---------------- ---------------------------------
NOTICE: The signature on this Option to Elect Repayment
must correspond with the name as written upon the face
of the within instrument in every particular without
alteration or enlargement.
16
Exhibit 5
AMERICAN HOME PRODUCTS CORPORATION
FIVE GIRALDA FARMS, MADISON, NEW JERSEY 07940
LOUIS L. HOYNES, JR.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
January 18, 1995
American Home Products Corporation
Five Giralda Farms
Madison, New Jersey 07940
Gentlemen:
As Senior Vice President and General Counsel of American Home Products
Corporation (the "Company"), I have acted as counsel for the Company in
connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of $3,500,000,000 aggregate principal amount of debt securities
(the "Securities") to be issued from time to time after the registration
statement to which this opinion is an exhibit (the "Registration Statement")
becomes effective. The terms used herein have the meanings assigned to them in
the Registration Statement.
I have examined the Company's Restated Certificate of Incorporation and
By-Laws and such other corporate records, certificates and documents and such
questions of law as I have considered necessary or appropriate for the purposes
of this opinion.
Based on the foregoing, it is my opinion that when the Registration
Statement has become effective under the Act, the terms of the Securities and
of their issue and sale have been duly established in conformity with the
Indenture so as not to violate any applicable law or agreement or instrument
then binding on the Company, and the Securities have been duly executed and
authenticated in accordance with the Indenture and issued and sold as provided
in the Registration Statement and delivered by the Company in accordance with
the Indenture, the Securities will constitute legal, valid and binding
obligations of the Company in accordance with their terms and the terms of the
Indenture, subject to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
The opinion expressed above should not be deemed to encompass compliance
with any laws other than those of the State of New Jersey, the corporation laws
of the State of Delaware, and the federal laws of the United States of America.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the heading "Legal
Matters" in the Prospectus. In giving such consent, I do not thereby admit
that I am in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
Louis L. Hoynes, Jr.
<TABLE><CAPTION>
Exhibit 12
AMERICAN HOME PRODUCTS CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(Thousands of dollars, except ratio amounts)
Nine months
ended Year Ended December 31,
September 30, -----------------------
Earnings 1994 1993 1992 1991 1990 1989
- -------- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Earnings from continuing operations
before taxes on income $1,469,927 $1,992,665 $1,724,070 $1,759,810 $1,828,278 $1,414,322
Add:
Fixed charges 70,924 91,500 63,403 50,554 154,905 60,908
Minority interest in earnings
of consolidated subsidiary 3,650 4,027 3,803 3,823 3,215 2,955
Minority interest in loss
of consolidated subsidiary (2,586) (9,129) (3,149) - - -
Amortization of capitalized interest 372 - - - - -
Less:
Capitalized interest - 14,898 - - - -
Dividends on preferred stock of
majority-owned subsidiary - 3,436 4,589 - - -
---------- -------------------------------------------------------------------
Total earnings as defined $1,542,287 $2,060,729 $1,783,538 $1,814,187 $1,986,398 $1,478,185
========== ========== ========== ========== ========== ==========
Fixed Charges
- -------------
Interest and amortization of
debt expenses $51,953 $47,871 $35,503 $31,431 $136,225 $42,560
Capitalized interest - 14,898 - - - -
Interest factor of rental expense 18,971 25,295 23,311 19,123 18,680 18,348
Dividends on preferred stock of
majority-owned subsidiary - 3,436 4,589 - - -
---------- ------------------------------------------------------------------
Total fixed charges as defined $70,924 $91,500 $63,403 $50,554 $154,905 $60,908
======= ======= ======= ======= ======== =======
Ratio of Earnings to Fixed Charges 22 23 28 36 13 24
</TABLE>
<TABLE><CAPTION>
Exhibit 12.1
AMERICAN HOME PRODUCTS CORPORATION
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
NINE MONTHS ENDED SEPTEMBER 30, 1994
(Thousands of dollars, except ratio amounts)
HISTORICAL
-----------------------------
Pro Forma
AMERICAN Nine Months
HOME AMERICAN Ended
PRODUCTS CYANAMID September 30,
Earnings CORPORATION COMPANY ACQ ADJs 1994
- -------- ------------ ----------- ---------- ----------------
<S> <C> <C> <C> <C>
Earnings from continuing operations
before taxes on income $1,469,927 $450,100 ($680,045)(a) $1,239,982
Add:
Fixed charges 70,924 60,200 533,720 664,844
Minority interest in earnings
of consolidated subsidiary 3,650 2,900 - 6,550
Minority interest in loss
of consolidated subsidiary (2,586) - - (2,586)
Amortization of capitalized interest 372 - - 372
Less:
Capitalized interest - 2,900 - 2,900
---------- -------- --------- ----------
Total earnings as defined $1,542,287 $510,300 ($146,325) $1,906,262
========== ======== ========== ==========
Fixed Charges
- -------------
Interest and amortization of
debt expenses $51,953 $45,900 $533,720 $631,573
Capitalized interest - 2,900 - 2,900
Interest factor of rental expense(b) 18,971 11,400 - 30,371
---------- -------- --------- ----------
Total fixed charges as defined $70,924 $60,200 $533,720 $664,844
========== ======== ========= ==========
Ratio of Earnings to Fixed Charges 22 8 2.9
</TABLE>
a - Represents interest expense on the acquisition debt and amortization of
the estimated cost over the net assets acquired (i.e., goodwill) and
merger-related financing costs for the purchase of American Cyanamid
Company.
b - A 1/3 factor was utilized to compute the portion of rental expenses deemed
representative of the interest factor.
<TABLE><CAPTION>
Exhibit 12.2
AMERICAN HOME PRODUCTS CORPORATION
PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
YEAR ENDED DECEMBER 31, 1993
(Thousands of dollars, except ratio amounts)
HISTORICAL
-----------------------------
AMERICAN Pro Forma
HOME AMERICAN Year Ended
PRODUCTS CYANAMID December 31,
Earnings CORPORATION COMPANY ACQ ADJs 1993
- -------- ------------ ----------- ---------- -------------
<S> <C> <C> <C> <C>
Earnings from continuing operations
before taxes on income $1,992,665 ($121,100) ($906,727)(a) $964,838
Add:
Fixed charges 91,500 82,200 711,627 885,327
Minority interest in earnings
of consolidated subsidiary 4,027 9,300 - 13,327
Minority interest in loss
of consolidated subsidiary (9,129) - - (9,129)
Less:
Capitalized interest 14,898 4,600 - 19,498
Dividends on preferred stock of
majority-owned subsidiary 3,436 - - 3,436
------------ ---------- ---------- -----------
Total earnings as defined $2,060,729 ($34,200) ($195,100) $1,831,429**
============ ========== ========== ===========
Fixed Charges
- -------------
Interest and amortization of
debt expenses $47,871 $62,400 $711,627 $821,898
Capitalized interest 14,898 4,600 - 19,498
Interest factor of rental expense(b) 25,295 15,200 - 40,495
Dividends on preferred stock of
majority-owned subsidiary 3,436 - - 3,436
---------- ---------- ---------- -----------
Total fixed charges as defined $91,500 $82,200 $711,627 $885,327
========== ========== ========== ===========
Ratio of Earnings to Fixed Charges 23 * 2.1**
</TABLE>
* - Calculation of the ratio results in an amount that is less than 1. The
amount of the earnings deficiency is $116.4 million.
** - Excluding the impact of American Cyanamid's one-time, pre-tax charges
of $383.6 million related to the acquisition of Immunex Corporation and
$207.9 million for restructuring, the ratio of earnings to fixed charges
would have been 2.7.
a - Represents interest expense on the acquisition debt and amortization of
the estimated cost over the net assets acquired (i.e. goodwill) and
merger-related financing costs for the purchase of American Cyanamid
Company.
b - A 1/3 factor was utilized to compute the portion of rental expenses deemed
representative of the interest factor.
Exhibit 23-a
Consent of Independent Public Accountants
TO: American Home Products Corporation:
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 registration statement and post-effective amendment
No. 1 to Form S-3 registration statement (No. 33-45324) of our report dated
January 18, 1994 incorporated by reference in the American Home Products
Corporation Form 10-K for the year ended December 31, 1993 as well as our
report also dated January 18, 1994 on the supplemental schedules included in
that Form 10-K and to all references to our firm included in this registration
statement.
/s/ ARTHUR ANDERSEN LLP
New York, N.Y.
January 17, 1995
Exhibit 23-b
ACCOUNTANTS' CONSENT
The Board of Directors
American Home Products Corporation:
We consent to the incorporation by reference in the registration statement on
Form S-3 and in Post-Effective Amendment No. 1 to Form S-3 (No. 33-45324) of
American Home Products Corporation of our report dated February 8, 1994, with
respect to the consolidated balance sheets of American Cyanamid Company and its
subsidiaries as of December 31, 1993 and 1992, and the related consolidated
statements of operations, earnings employed in the business, and cash flows
for each of the years in the three-year period ended December 31, 1993, which
report appears in the December 31, 1993 Annual Report on Form 10-K of American
Cyanamid Company which was previously incorporated by reference into the Form
8-K of American Home Products Corporation filed on December 6, 1994. Our report
refers to the adoption of the provisions of Statements of Financial Accounting
Standards No. 106, "Employers' Accounting for Postretirement Benefits Other
Than Pensions", and No. 109, "Accounting for Income Taxes", effective January 1,
1993.
We also consent to the reference to our firm under the heading "Experts" in the
Prospectus.
/s/ KPMG Peat Marwick LLP
Short Hills, New Jersey
January 17, 1995
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) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
American Home Products Corporation
(Exact name of obligor as specified in its charter)
Delaware 13-2526821
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
Five Giralda Farms
Madison, New Jersey 07940
(Address of principal executive offices) (Zip Code)
___________________________________________
Debt Securities
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject. New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C., 20551
and Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September
9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to Form T-1 filed
in connection with Registration Statement No. 33-50010, which is incorporated
by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 33-84460, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 13th day of January, 1995.
CHEMICAL BANK
By /s/ P.J. Gilkeson
-------------------------------------------------
P.J. Gilkeson
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1994, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................... $ 5,913
Interest-bearing balances ....................... 5,078
Securities: ........................................
Held to maturity securities.......................... 6,544
Available for sale securities........................ 14,264
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold .............................. 1,811
Securities purchased under agreements to resell . 20
Loans and lease financing receivables:
Loans and leases, net of unearned income $63,160
Less: Allowance for loan and lease losses 2,015
Less: Allocated transfer risk reserve ... 113
------
Loans and leases, net of unearned income,
allowance, and reserve ........................... 61,032
Assets held in trading accounts ...................... 25,972
Premises and fixed assets (including capitalized
leases)........................................... 1,394
Other real estate owned .............................. 496
Investments in unconsolidated subsidiaries and
associated companies.............................. 141
Customer's liability to this bank on acceptance
outstanding ...................................... 1,167
Intangible assets .................................... 555
Other assets ......................................... 5,812
-----
TOTAL ASSETS ......................................... $130,199
=========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................ $45,811
Noninterest-bearing .........................$15,174
Interest-bearing ............................ 30,637
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 28,701
Noninterest-bearing .........................$ 154
Interest-bearing ............................ 28,547
------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 10,457
Securities sold under agreements to repurchase ..... 1,187
Demand notes issued to the U.S. Treasury ............... 1,538
Trading liabilities .................................... 17,298
Other Borrowed money:
With original maturity of one year or less ......... 6,647
with original maturity of more than one year ....... 1,035
Mortgage indebtedness and obligations under capitalized
leases ............................................. 24
Bank's liability on acceptances executed and outstanding 1,175
Subordinated notes and debentures ...................... 3,500
Other liabilities ...................................... 5,332
TOTAL LIABILITIES ...................................... 122,705
-------
EQUITY CAPITAL
Common stock ........................................... 620
Surplus ................................................ 4,501
Undivided profits and capital reserves ................. 2,665
Net unrealized holding gains (Losses)
on available-for-sale securities ....................... (290)
Cumulative foreign currency translation adjustments .... (2)
TOTAL EQUITY CAPITAL ................................... 7,494
______
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL ........................... $130,199
==========
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition is true and correct to the best of my knowledge
and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We
declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in confor-
mance with the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
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