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U.S. $300,000,000 1/
Air Products and Chemicals, Inc.
Medium-Term Notes, Series E
AGENCY AGREEMENT
[ ], 1996
▇▇▇▇▇▇ Brothers
▇▇▇▇▇▇ Brothers Inc.
3 World Financial Center
New York, New York 10285-1200
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
Air Products and Chemicals, Inc., a Delaware corporation (the
"Corporation"), confirms its agreement with each of you with respect to the
issue and sale by the Corporation of up to $300,000,000 1/ aggregate principal
amount of its Medium-Term Notes, Series E, Due from 9 Months to 30 Years from
Date of Issue (the "Notes"). The Notes are to be issued from time to time
pursuant to an indenture, dated as of January 10, 1995 (as it may be
supplemented or amended from time to time, the "Indenture"), between the
Corporation and First Union National Bank (formerly First Fidelity Bank,
National Association), as trustee (the "Trustee").
The Notes will be issued, and the terms thereof established,
in accordance with the Indenture and the Medium-Term Notes, Series E,
Administrative Procedures attached hereto as Exhibit B (the "Procedures")
(unless a Terms Agreement (as defined in Section 2(b)) modifies or otherwise
supersedes such Procedures with respect to the Notes issued pursuant to such
Terms Agreement). For the
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1/ Or its equivalent in foreign currencies or currency units.
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purposes of this Agreement, the term "Agent" shall refer to any of you acting
solely in the capacity as agent for the Corporation pursuant to Section 2(a)
and not as principal (collectively, the "Agents"), the term "Purchaser" shall
refer to one of you acting solely as principal pursuant to Section 2(b) and not
as agent, and the term "you" shall refer to you collectively whether at any
time any of you is acting in both such capacities or in either such capacity.
In acting under this Agreement, in whatever capacity, each of you is acting
individually and not jointly.
SECTION 1. Representations and Warranties. The Corporation
represents and warrants to each of you as of the Closing Date referred to in
Section 2(a)(viii), and as of the times referred to in Section 9(a) at which the
Corporation accepts offers to purchase Notes and delivers Notes so purchased
(each such time being hereinafter sometimes referred to as a "Representation
Date"), as follows:
(a) Registration Statement and Prospectus. The Corporation
has filed with the Securities and Exchange Commission (the
"Commission"), pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), and the published rules and regulations adopted by
the Commission thereunder (the "Rules"), a registration statement on
Form S-3 (No. 33-[ ]) (the "Registration Statement"), including a
basic prospectus, which has become effective under the Securities Act,
for the registration under the Securities Act of $300,000,000 aggregate
principal amount of debt securities (the "Securities"), including the
Notes. The Registration Statement meets the requirements set forth in
Rule 415(a)(1) under the Securities Act and complies in all other
material respects with said Rule. The Corporation has included in the
Registration Statement a supplement to the form of prospectus included
in the Registration Statement relating to the Notes and the plan of
distribution thereof (as amended or supplemented from time to time, the
"Prospectus Supplement"). In connection with the sale of the Notes,
the Corporation proposes to file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Securities Act further
supplements to the Prospectus Supplement specifying the interest rates,
maturity dates, redemption provisions and other similar terms of the
Notes sold pursuant hereto or the offering thereof.
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"Basic Prospectus" shall mean the form of basic prospectus relating to
the Securities contained in the Registration Statement. The term
"Prospectus" means the Basic Prospectus as supplemented by the
Prospectus Supplement. Any reference herein to the Registration
Statement, the Basic Prospectus, the Prospectus Supplement or the
Prospectus includes the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on or before the
date hereof or the issue date of the Prospectus Supplement or the
Prospectus, as the case may be, and any reference herein to "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, the Prospectus Supplement or the Prospectus
includes the filing of any document under the Exchange Act after the
date hereof or the issue date of the Prospectus Supplement or the
Prospectus, as the case may be, and deemed to be incorporated therein
by reference.
(b) Accuracy of Registration Statement. The Registration
Statement, as amended, as of each Representation Date, complies in all
material respects with the provisions of the Securities Act and the
Rules and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and the
Prospectus, as supplemented as of any such time, complies in all
material respects with the provisions of the Securities Act and the
Rules and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided, however, that the Prospectus as supplemented at the Closing
Date may not include the information contemplated by Section l(a) to
be contained in pricing supplements thereto; provided, further,
however, that none of the representations and warranties contained in
this Section 1(b) shall apply to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), of the Trustee or (ii) statements
in, or omissions from, the Registration Statement or the Prospectus or
any
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amendment thereof or supplement thereto made in reliance upon and in
conformity with information furnished in writing to the Corporation by
or on behalf of you for use in connection with the preparation of the
Registration Statement or the Prospectus or any such amendment or
supplement.
(c) Accountants. The accountants whose reports with respect
to financial statements are included in the Registration Statement and
the Prospectus are independent with respect to the Corporation and its
subsidiaries as required by the Securities Act and the Rules.
(d) Material Changes. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
as amended or supplemented as of such Representation Date, and except
as set forth therein, there has not been any material adverse
development or change in the condition, financial or other, or the
results of operations of the Corporation and its consolidated
subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business.
(e) Litigation. Except as set forth in the Registration
Statement and the Prospectus, as amended or supplemented as of such
Representation Date, neither the Corporation nor any of its
subsidiaries has any litigation or governmental proceeding pending of
a character which will result in a judgment, decree or order having a
material adverse effect on the condition, financial or other, or the
results of operations of the Corporation and its consolidated
subsidiaries, taken as a whole.
(f) Valid Incorporation; Subsidiaries. The Corporation and
each subsidiary of the Corporation has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
jurisdiction in which it was incorporated, has the corporate power to
own or hold under lease the property it purports to own or hold under
lease and to carry on the business in which it is engaged, and is duly
licensed and duly qualified and is in good standing as a foreign
corporation in each jurisdiction wherein the character of the property
owned or held under lease by it, or the nature of the business
transacted by it,
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makes such licensing or qualification necessary; and all the
outstanding shares of the capital stock of the subsidiaries of the
Corporation are owned directly, or indirectly through wholly owned
subsidiaries, by the Corporation, free and clear of any material lien,
pledge or other encumbrance, except for (i) directors' and officers'
qualifying shares and (ii) shares of such stock representing minority
interests reflected in the financial statements of the Corporation and
its consolidated subsidiaries included in the Prospectus.
(g) Legality. At the date when the Prospectus Supplement is
filed with, or mailed for filing to, the Commission pursuant to Rule
424(b) under the Securities Act and at each Representation Date
thereafter, (i) the issuance and delivery of the Notes by the
Corporation pursuant to this Agreement will have been duly and validly
authorized by all necessary corporate action and no authorization,
consent or approval of the stockholders and no further authorization
or approval of the Board of Directors of the Corporation will be
required for the issuance, sale and delivery of the Notes as
contemplated herein; (ii) neither such issuance, sale or delivery of
the Notes nor the consummation of any other of the transactions herein
contemplated will result in a breach by the Corporation of any terms
of, or constitute a default under, any other agreement or undertaking
of the Corporation; and (iii) no authorization, consent or approval
of, or filing or registration with, or exemption by, any government or
public body or authority of the United States or of any State or any
department or subdivision thereof, other than such as may be required
under the securities or blue sky laws of any jurisdiction and other
than registration of the Notes under the Securities Act and
qualification of the Indenture under the Trust Indenture Act, is
required for the validity of the Notes or for the valid offering,
issuance, sale and delivery of the Notes by the Corporation pursuant
to this Agreement or for the execution and delivery by the Corporation
of this Agreement and the Indenture.
(h) No Stop Order. The Commission has not issued any order
preventing or suspending the use of the Prospectus as supplemented as
of such Representation Date.
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(i) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus, as amended or
supplemented as of such Representation Date, present fairly the
financial condition and results of operations of the entities purported
to be shown thereby, at the dates and for the periods indicated, and
have been, and in the case of financial statements included in any
amendments or supplements as of such Representation Date will be,
prepared, except as stated therein, in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods involved.
(j) Timely Filing of Documents. During the twelve calendar
months and any portion of a calendar month immediately preceding the
date of the filing of the Registration Statement with the Commission,
the Corporation has timely filed all documents and amendments to
previously filed documents required to be filed by it pursuant to
Section 12, 13, 14 or 15(d) of the Exchange Act. The documents
incorporated by reference into the Prospectus, as supplemented as of
the applicable Representation Date, have been, and each document
subsequently incorporated by reference therein as of such
Representation Date will be, prepared by the Corporation in conformity
with the requirements of the Exchange Act and the rules and
regulations thereunder and such documents have been, or in the case of
documents subsequently incorporated by reference therein will be as of
the applicable Representation Date, timely filed as required thereby.
Copies of each of the documents incorporated by reference into the
Prospectus, together with satisfactory evidence of the filing thereof
and of the other documents and amendments referred to in the first
sentence of this paragraph, have been, or as of the applicable
Representation Date will be, delivered by the Corporation to each
of you.
(k) Doing Business with Cuba. The Corporation confirms as of
the date hereof, and each acceptance by the Corporation of an offer to
purchase Notes will be deemed to be an affirmation, that the
Corporation is in compliance with all provisions of Section 517.075 of
the Florida Securities and Investor Protection Act relating to
disclosure of business in Cuba, and the Corporation further agrees
that it will continue so to comply in the future.
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SECTION 2. Appointment of Agents; Solicitation by the Agents
of Offers to Purchase; Sales of Notes to a Purchaser. (a) Subject to the
terms and conditions stated herein, and subject to the reservation by the
Corporation of the right to sell Notes directly on its own behalf, and to sell
Notes to or through such other agents as the Corporation shall appoint from
time to time:
(i) the Corporation hereby appoints the Agents as agents of
the Corporation for the purpose of soliciting or receiving offers to
purchase the Notes from the Corporation by others;
(ii) the Corporation shall notify the Agents of any sale made
to or through other agents on or promptly after the settlement date for
such sale. This Agreement shall apply only to sales of the Notes and
not to sales of any other securities or evidences of indebtedness of
the Corporation and only on the specific terms set forth herein;
(iii) on the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Corporation, to use its
reasonable best efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus, as supplemented
from time to time. Except as provided in Section 2(b), under no
circumstances will any Agent be obligated to purchase any Notes for its
own account. It is understood and agreed, however that any Agent may
purchase Notes as principal pursuant to Section 2(b);
(iv) the Corporation reserves the right, in its sole
discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or permanently. Upon
receipt of at least one business day's prior notice from the
Corporation, the Agents will forthwith suspend solicitation of offers
to purchase Notes from the Corporation until such time as the
Corporation has advised the Agents that such solicitation may be
resumed. For the purpose of the foregoing sentence, "business day"
shall mean any day which is not a Saturday or Sunday or a legal holiday
and which is not a day on which banking institutions are authorized or
required by law or regulation to close in New York, New
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York. The suspension of solicitation of offers to purchase the Notes
by the Corporation shall likewise suspend until the next Representation
Date the representations and warranties set forth in Section 1 and the
covenants set forth in Sections 4 and 9, except as and to the extent
provided in Section 13;
(v) promptly upon the closing of the sale of any Notes sold by
the Corporation as a result of a solicitation made by an Agent, the
Corporation agrees to pay such Agent a commission in accordance with
the schedule set forth in Exhibit A hereto;
(vi) the Agents are authorized to solicit offers to purchase
the Notes only in denominations of U.S. $100,000 2/ or any amount in
excess thereof which is an integral multiple of U.S. $1,000, at a
purchase price equal to 100% of the principal amount thereof or such
other principal amount as shall be specified by the Corporation. Each
Agent shall communicate to the Corporation, orally or in writing, each
reasonable offer to purchase Notes received by it as an Agent other
than those rejected by such Agent pursuant to the next sentence. Each
Agent shall have the right, in its discretion reasonably exercised
without advising the Corporation, to reject any offer to purchase the
Notes received by it, in whole or in part, and any such rejection shall
not be deemed a breach of its agreement contained herein. The
Corporation shall have the sole right to accept offers to purchase the
Notes and may reject any such offer in whole or in part;
(vii) the Procedures may be amended in writing from time to
time by mutual agreement of the Agents and the Corporation after
notice to, and with the approval of, the Trustee. Each Agent and the
Corporation agree to perform the respective duties and obligations
specifically provided to be performed by each of them herein and in
the Procedures; and
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2/ Or the equivalent (rounded down to an integral multiple of 10,000
units of the denomination specified in a supplement to the Prospectus) in the
relevant foreign currency or currency unit, or such larger amount in integral
multiples of 10,000 units of such denomination.
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(viii) the documents required to be delivered by Section 6 hereof
shall be delivered at the offices of Cravath, Swaine & ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ not later than 10:00 A.M., New
York City time, on the date of this Agreement or at such later time or
other location in New York City as may be mutually agreed upon by the
Corporation and the Agents, which in no event shall be later than the
time at which the Agents commence solicitation of offers to purchase
Notes hereunder (the "Closing Date").
(b) Subject to the terms and conditions stated herein,
whenever the Corporation and any of you determines that the Corporation shall
sell Notes directly to any of you as principal, each such sale of Notes shall be
made in accordance with the terms of this Agreement and a supplemental agreement
relating to such sale. Each such supplemental agreement, which may be either
oral or written, is herein referred to as a "Terms Agreement":
(i) each Terms Agreement shall describe the Notes to be
purchased by the Purchaser pursuant thereto and shall specify the
aggregate principal amount of such Notes, the price to be paid to the
Corporation for such Notes, the currency in which such Notes are
issued, the maturity date of such Notes, the rate at which interest
will be paid on such Notes, the dates on which interest will be paid on
such Notes and the record date with respect to each such payment of
interest, the Closing Date for the purchase of such Notes, the place
of delivery of the Notes and payment therefor, the method of payment
and any requirements for the delivery of opinions of counsel,
certificates from the Corporation or its officers or a letter from the
Corporation's independent public accountants as described in Section
7(f). Any such Terms Agreement may also specify the period of time
referred to in Section 4(k). Any written Terms Agreement may be in the
form attached hereto as Exhibit C. The Purchaser's commitment to
purchase Notes shall be deemed to have been made on the basis of the
representations and warranties of the Corporation herein contained and
shall be subject to the terms and conditions herein set forth;
(ii) delivery of the certificates for Notes sold to the
Purchaser pursuant to a Terms Agreement shall be made not later than
the Closing Date agreed to in such Terms Agreement, against payment of
funds to the
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Corporation in the net amount due to the Corporation for such Notes by
the method and in the form set forth in such Terms Agreement; and
(iii) unless otherwise agreed to between the Corporation and
the Purchaser in a Terms Agreement, any Note sold to a Purchaser (A)
shall be purchased by such Purchaser at a price equal to 100% of the
principal amount thereof less a percentage equal to the commission
applicable to an agency sale of a Note of identical maturity and (B)
may be resold by such Purchaser at varying prices from time to time or,
if set forth in the applicable Terms Agreement and pricing supplement,
at a fixed public offering price. In connection with any resale of
Notes purchased, a Purchaser may use a selling or dealer group and may
reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
SECTION 3. Offering and Sale of Notes. Each Agent and the
Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
SECTION 4. Covenants of the Corporation. The Corporation
covenants and agrees:
(a) To furnish promptly to each of you and to your
counsel a signed copy of the Registration Statement as originally filed and
each amendment or supplement thereto, and a copy of each Prospectus filed with
the Commission, including all supplements thereto and all documents
incorporated therein by reference and all consents and exhibits filed
therewith.
(b) To deliver promptly to each of you such number of the
following documents as each of you may reasonably request: (i) conformed copies
of the Registration Statement (excluding exhibits other than the computation of
the ratio of earnings to fixed charges, the Indenture and this Agreement), (ii)
the Basic Prospectus, each preliminary prospectus and the Prospectus and (iii)
any documents incorporated by reference in the Prospectus.
(c) If, during any period in which, in the opinion of your
counsel, a prospectus relating to the Notes is required to be delivered under
the Securities Act in respect of Notes being offered for sale by any of you, any
event
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relating to or affecting the Corporation occurs as a result of which the
Prospectus would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the Securities
Act (other than periodic reports under the Exchange Act that are timely filed),
to notify each of you promptly to suspend solicitation of purchases of the
Notes; and if the Corporation shall decide to amend or supplement the
Registration Statement or the Prospectus, to promptly advise each of you by
telephone (with confirmation in writing) and to promptly prepare and timely file
with the Commission an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance; provided,
however, that if during the period referred to above, in the case of a sale made
pursuant to a Terms Agreement, the Corporation shall promptly prepare and timely
file with the Commission any amendment or supplement to the Registration
Statement or any Prospectus that may, in the judgment of the Corporation or the
Purchaser, be required by the Securities Act or requested by the Commission.
(d) To timely file with the Commission during the period
referred to in (c) above all documents (and any amendments to previously filed
documents) required to be filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act.
(e) Upon filing with the Commission during the period referred
to in (c) above (i) any amendment or supplement to the Registration Statement,
(ii) any amendment or supplement to the Prospectus or (iii) any document
incorporated by reference in any of the foregoing or any amendment of or
supplement to any such incorporated document, to furnish a copy thereof to
each of you.
(f) During the period referred to in (c) above, to advise
each of you (i) when any post-effective amendment to the Registration
Statement relating to or covering the Notes becomes effective, (ii) of any
demand by the Commission for an amendment or supplement to the
Registration Statement, to the Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information (other than
any demand for an amendment or supplement to or additional information
concerning documents hereafter filed with the Commission
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pursuant to the Exchange Act and incorporated by reference in the Registration
Statement and Prospectus, where the failure to comply with such request would
not cause the Registration Statement or the Prospectus, as then supplemented or
amended, to fail to comply in any material respect with the provisions of the
Securities Act and the applicable Rules or to contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading), (iii) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or any order directed to the
Prospectus or any document incorporated therein by reference or the initiation
or threat of any stop order proceeding, (iv) of receipt by the Corporation of
any notification with respect to the suspension of the qualification of the
Notes for sale in any jurisdiction or the initiation or threat of any proceeding
for that purpose and (v) of the happening of any event relating to or affecting
the Corporation which makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus or which requires the making of a
change in the Registration Statement or the Prospectus in order to make any
material statement therein not misleading.
(g) If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting
of that order at the earliest possible time.
(h) As soon as practicable, but not later than 18 months,
after the date of each acceptance by the Corporation of an offer to purchase
Notes hereunder, to make generally available to its security holders and each
of you an earnings statement or statements which will satisfy the provisions
of Section 11(a) of the Securities Act (including, at the option of the
Corporation, Rule 158 of the Rules).
(i) So long as any of the Notes are outstanding (including by
way of resale by a Purchaser of Notes), to furnish to each of you, not later
than the time the Corporation makes the same available to others, copies of all
public reports or press releases (i) sent by the Corporation over the P.R.
Newswire, (ii) furnished by the Corporation to any securities exchange on which
the Notes are listed pursuant to requirements of or agreements with
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such exchange or (iii) filed with the Commission pursuant to the Exchange Act or
any rule or regulation of the Commission thereunder.
(j) To endeavor, in cooperation with each of you, to qualify
the Notes for offering and sale under the securities laws of such jurisdictions
as each of you may designate, and to maintain such qualifications in effect for
as long as may be required for the distribution of the Notes, and to file such
statements and reports as may be required by the laws of each jurisdiction in
which the Notes have been qualified as above provided; provided, however, that
the Corporation shall not be required to register or qualify as a foreign
corporation nor, except as to matters and transactions relating to the offer or
sale of the Notes, take any action which would subject it to service of process
generally in any jurisdiction.
(k) During the period, if any, specified (whether orally or in
writing) in any Terms Agreement, the Corporation shall not, without the prior
consent of the Purchaser thereunder, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering of, any
debt securities issued or guaranteed by the Corporation (other than the Notes
being sold pursuant to such Terms Agreement, borrowings under the Corporation's
revolving credit agreements and lines of credit, the private placement of
securities and issuances of the Corporation's commercial paper).
SECTION 5. Payment of Expenses. The Corporation will pay (i)
the costs incident to the authorization, issuance, sale and delivery of the
Notes and any taxes payable in that connection, (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments and exhibits thereto, (iii) the costs incident to
the preparation, printing and filing of any document and any amendments and
exhibits thereto required to be filed by the Corporation under the Exchange Act,
(iv) the costs of distributing, as each of you may reasonably request, the
Registration Statement, as originally filed, and each amendment and
post-effective amendment thereof (including exhibits), any preliminary
prospectus, the Basic Prospectus, the Prospectus, any supplement or amendment to
the Prospectus and any documents incorporated by reference in any of the
foregoing documents, (v) the fees and disbursements of the Trustee, any paying
agent, any calculation agent, any exchange rate agent and any other agents
appointed by the Corporation, and their respective
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counsel, (vi) the costs and fees in connection with the listing of the Notes on
any securities exchange, (vii) the cost of any filings with the National
Association of Securities Dealers, Inc., (viii) the reasonable fees and
disbursements of counsel to the Corporation and your counsel, (ix) the fees paid
to rating agencies in connection with the rating of the Notes, (x) the fees and
expenses of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 4(j) hereof and of preparing and printing a
Blue Sky Memorandum and a memorandum concerning the legality of the Notes as an
investment (including the reasonable fees and expenses of your counsel in
connection therewith), (xi) all advertising expenses in connection with the
offering of the Notes incurred with the consent of the Corporation and (xii)
other costs and expenses incurred by the Corporation in connection with the
performance of its obligations under this Agreement.
SECTION 6. Conditions of Obligations of the Agents. The
obligations of the Agents, as agents of the Corporation, under this Agreement to
solicit offers to purchase the Notes, and the obligation of any person who has
agreed to purchase Notes sold through an Agent as agent to make payment for and
take delivery of Notes, are subject to the accuracy on each Representation
Date of the representations and warranties of the Corporation contained herein,
to the performance by the Corporation of its obligations hereunder, and to
each of the following additional terms and conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall
have been filed in the manner and within the time period required by Rule
424(b); no stop order suspending the effectiveness of the Registration Statement
or any part thereof nor any order directed to any document incorporated by
reference in the Prospectus shall have been issued; no stop order proceeding
shall have been initiated or threatened by the Commission; no challenge shall
have been made by the Commission and shall not have been satisfactorily answered
or remedied by the Corporation to the accuracy or adequacy of any document
incorporated by reference in the Prospectus in any respect that would constitute
a failure of the Prospectus, as supplemented, to comply in any material respect
with the provisions of the Securities Act and the applicable Rules or that, if
substantiated, would mean that the Prospectus, as
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supplemented, would contain any untrue statement of a material fact or would
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances in which
they were made, not misleading; any request of the Commission of the nature
referred to in Section 4(f)(ii) shall have been complied with.
(b) No order suspending the sale of the Notes in any
jurisdiction designated by the Agents pursuant to Section 4(j) hereof shall have
been issued, and no proceeding for that purpose shall have been initiated or
threatened.
(c) The Agents shall not have discovered and disclosed to the
Corporation that the Registration Statement or any Prospectus contains an
untrue statement of a fact which, in the opinion of counsel for the Agents, is
material or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(d) All corporate proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the Notes,
the Indenture, the form of the Registration Statement, the Prospectus (other
than financial statements and other financial data) and all other legal matters
relating to this Agreement and the transactions contemplated hereby shall be
satisfactory in all respects to counsel for the Agents and the Corporation
shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.
(e) At the Closing Date, the Agents shall have received the
opinion, addressed to the Agents and dated the Closing Date, of the General
Counsel of the Corporation or the Assistant General Counsel of the Corporation,
in form and substance satisfactory to the Agents and their counsel, to the
effect that:
(i) the Corporation has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
State of Delaware, and has the corporate power to own or hold under
lease the property it purports to own or hold under lease and to carry
on the business in which it is engaged;
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(ii) the form of the Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(iii) the issuance, sale and delivery of the Notes by the
Corporation pursuant to this Agreement have been duly and validly
authorized by all necessary corporate action; and no authorization,
consent or approval of, or filing or registration with, or exemption
by, any government or public body or authority of the United States or
of any State or any Department or subdivision thereof, other than such
as may be required under the securities or blue sky laws of any
jurisdiction, is required for the validity of the Notes or for the
valid offering, issuance, sale and delivery of the Notes by the
Corporation pursuant to this Agreement or for the execution and
delivery by the Corporation of this Agreement and the Indenture;
(iv) the Indenture has been duly and validly authorized,
executed and delivered by the Corporation and constitutes an
instrument valid and binding on the Corporation and enforceable in
accordance with its terms (except as (a) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability);
(v) the Notes, when issued in a form conforming to the
specimens thereof examined by such counsel, will be in a form
contemplated by the Indenture and, assuming due execution of the Notes
on behalf of the Corporation and authentication thereof by the
Trustee, upon the delivery thereof and payment therefor as provided in
this Agreement, the Notes will constitute valid and binding
obligations of the Corporation enforceable in accordance with their
respective terms (except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability), entitled to the
benefits of the Indenture;
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(vi) this Agreement has been duly authorized, executed and
delivered by the Corporation, and the performance of this Agreement
and the consummation of the transactions herein contemplated will not
result in a breach of any of the terms or provisions of, or constitute
a default under, the Restated Certificate of Incorporation or By-laws
of the Corporation or, to the knowledge of such counsel, any law,
administrative regulation or court decree applicable to the
Corporation or by which the Corporation or any of its proper-
ties is bound or affected (except to the extent that the
enforceability of the indemnity provisions of this Agreement may be
limited by securities laws or public policy);
(vii) the performance of this Agreement and the consummation
of the transactions herein contemplated will not result in a breach of
any of the terms or provisions of, or constitute a default under, any
indenture, deed of trust, note, note agreement or other agreement or
instrument known to such counsel to which the Corporation or any of
its subsidiaries is a party or by which the Corporation or any of its
subsidiaries or any of their properties is bound or affected;
(viii) the Registration Statement and any amendments thereof
have become and are effective and the Registration Statement, the
Prospectus and each amendment thereof or supplement thereto, as of
their respective effective or issue dates, complied as to form in all
material respects with the requirements of the Securities Act, and the
Rules (except that no opinion need be expressed as to financial
statements and other financial data), the Securities are registered
under the Securities Act, and the Indenture has been qualified under
the Trust Indenture Act; and
(ix) in passing upon the form of the Registration Statement
and the Prospectus, such counsel has necessarily assumed the
correctness and completeness of the statements made or included
therein and takes no responsibility therefor, except insofar as such
statements relate to the description of the Notes or the Indenture or
relate to such counsel; the statements with regard to such counsel
made under the heading "Legal Opinions" in the Prospectus are correct;
and such counsel has no reason to believe that (except as aforesaid)
the Registration Statement (or any post-effective
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amendment thereof) at the time it became effective contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that (except as aforesaid) the
Prospectus (as amended or supplemented, if so amended or supplemented)
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading as of the Closing Date.
(f) The Corporation shall have furnished to the Agents on the
Closing Date a certificate of the Corporation, dated the Closing Date, signed
on its behalf by the President, the Vice President-Finance or the Treasurer,
stating that:
(i) The representations, warranties and agreements of the
Corporation in section 1 hereof are true and correct in all material
respects as of the date of such certificate with the same effect as if
made on such date; and the Corporation has not received any notice
that the conditions set forth in Section 5(a) hereof will not be
satisfied as of the Closing Date or any other Representation Date; and
(ii) The person executing such certificate has examined the
Registration Statement and the Prospectus and, in such person's
opinion, (A) the Registration Statement at the date thereof, or as of
the most recent amendment thereto, if any, did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) the Prospectus as supplemented at the date of such
certificate does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than
the information to be provided in pricing supplements thereto as
contemplated by Section l(a) hereof), and (C) since the effective date
of the Registration Statement (or the most recent amendment thereto,
if any) there has not occurred any
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event required to be set forth in an amendment to the Registration
Statement which has not been so set forth.
(g) The Corporation shall have furnished to the Agents on the
Closing Date a letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed jointly to the
Corporation and the Agents and dated the Closing Date, of the type described in
the American Institute of Certified Public Accountants Statement on Auditing
Standards No. 76 substantially in the form heretofore approved by the Agents,
covering such specified financial statement items and procedures as the Agents
may reasonably request and in form and substance reasonably satisfactory to the
Agents.
(h) There shall not have occurred, since the date of this
Agreement, in the case of the obligations of the Agents to solicit offers, or
since the date of the Corporation's acceptance of an offer to purchase Notes,
in the case of the obligation to purchase such Notes: any material adverse
change in, or any adverse development which materially affects the business,
properties, condition (financial or other), results of operations or prospects
of the Corporation and its consolidated subsidiaries taken as a whole; a
suspension or material limitation in trading in securities generally on the New
York Stock Exchange or the establishment of minimum prices on such exchange; a
general moratorium on commercial banking activities declared by either federal
or New York State authorities; any material adverse change in the existing
financial, political or economic conditions in the United States or elsewhere;
an outbreak or escalation of major hostilities involving the United States or
the declaration of a national emergency or war by the United States; or any
downgrading in the rating accorded the Corporation's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities
Act, or any public announcement by any such organization that the rating
accorded any of the Corporation's debt securities have been placed under
surveillance or review with possible negative implications, if the effect
thereof in the judgment of such Agent or purchaser makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Notes or the
purchase of Notes from the Corporation, as the case may be.
(i) Prior to the Closing Date, the Corporation shall have
furnished to the Agents such further information,
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certificates and documents as the Agents or counsel to the Agents may reasonably
request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance satisfactory to
counsel for the Agents.
SECTION 7. Conditions to the Obligations of a Purchaser. The
obligations of a Purchaser to purchase any Notes will be subject to the accuracy
of the representations and warranties on the part of the Corporation herein as
of the date of the related Terms Agreement and as of the Closing Date for such
Notes, to the performance and observance by the Corporation of all covenants and
agreements herein contained on its part to be performed and observed and to the
following additional conditions precedent:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); no stop order suspending the
effectiveness of the Registration Statement or any part thereof nor any
order directed to any document incorporated by reference in the
Prospectus shall have been issued; no stop order proceeding shall have
been initiated or threatened by the Commission; no challenge shall have
been made by the Commission and shall not have been satisfactorily
answered or remedied by the Corporation to the accuracy or adequacy of
any document incorporated by reference in the Prospectus in any respect
that would constitute a failure of the Prospectus, as supplemented, to
comply in any material respect with the provisions of the Securities
Act and the applicable Rules or that, if substantiated, would mean that
the Prospectus, as supplemented, would contain any untrue statement of
a material fact or would omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances in which they were made, not misleading;
any request of the Commission of the nature referred to in Section
4(f)(ii) shall have been complied with.
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(b) No order suspending the sale of the Notes in any
jurisdiction designated by the Purchaser pursuant to Section 4(j)
hereof shall have been issued, and no proceeding for that purpose shall
have been initiated or threatened.
(c) The Purchaser shall not have discovered and disclosed to
the Corporation that the Registration Statement or any Prospectus
contains an untrue statement of a fact which, in the opinion of counsel
for the Purchaser, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Notes,
the Indenture, the form of the Registration Statement, the Prospectus
(other than financial statements and other financial data) and all
other legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to counsel
for the Purchaser and the Corporation shall have furnished to such
counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(e) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the
Company prior to delivery of any payment for any Note to be purchased
thereunder, if prior to such time: any material adverse change in, or
any adverse development which materially affects the business,
properties, condition (financial or other), results of operations or
prospects of the Corporation and its consolidated subsidiaries taken
as a whole; a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the
establishment of minimum prices on such exchange; a general moratorium
on commercial banking activities declared by either federal or New York
State authorities; any material adverse change in the existing
financial, political or economic conditions in the United States or
elsewhere; an outbreak or escalation of major hostilities involving the
United States or the declaration of a national emergency or war by the
United States; or any downgrading in the
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rating accorded the Corporation's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities Act,
or any public announcement by any such organization that the rating
accorded any of the Corporation's debt securities have been placed
under surveillance or review with possible negative implications, if
the effect thereof in the judgment of such Purchaser makes it
impracticable or inadvisable to proceed with the purchase of Notes from
the Corporation.
(f) To the extent agreed to between the Corporation and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Corporation, dated as
of the Closing Date, to the effect set forth in Section 6(f) (except
that references to the Prospectus shall be to the Prospectus as
supplemented as of the date of such Terms Agreement), (ii) the opinion
of the General Counsel of the Corporation or the Assistant General
Counsel of the Corporation, dated as of the Closing Date, to the effect
set forth in Section 6(e), and (iii) letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent accountants for the Corporation, dated as of the Closing
Date, to the effect set forth in Section 6(g).
(g) Prior to the Closing Date, the Corporation shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and the applicable Terms Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement or such Terms
Agreement and required to be delivered to the Purchaser pursuant to the terms
hereof and thereof shall not be in all material respects reasonably satisfactory
in form and substance to the Purchaser and its counsel, such Terms Agreement and
all obligations of the Purchaser thereunder and with respect to the Notes
subject thereto may be canceled at, or at any time prior to, the respective
Closing Date by the Purchaser. Notice of such cancelation shall be given to the
Corporation in writing or by telephone or telegraph confirmed in writing.
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SECTION 8. Right of Person Who Agreed to Purchase to Refuse
to Purchase. The Company agrees that any person who has agreed to purchase and
pay for any Note pursuant to a solicitation by any of the Agents shall have the
right to refuse to purchase such Note if, at the Closing Date therefor, any
condition set forth in Section 6 shall not be satisfied.
SECTION 9. Additional Covenants of the Corporation. The
Corporation covenants and agrees that:
(a) Each acceptance by it of an offer for the purchase of
Notes solicited by an Agent hereunder shall be deemed to be an affirmation that
the representations and warranties of the Corporation contained in this
Agreement are true and correct at the time of such acceptance, and an
undertaking that such representations and warranties will be true and correct
at the time of delivery to the purchaser or his agent of the Notes relating to
such acceptance as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended or supplemented to each
such time).
(b) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a pricing supplement
or an amendment or supplement providing solely for a change in the interest
rates or maturities of the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes and other than by the filing of a
document incorporated by reference into the Prospectus other than the documents
specified below) or the Corporation files with the Commission an Annual Report
on Form 10-K, a Quarterly Report on Form 10-Q, or a Current Report on Form 8-K
pursuant to Item 1, 2, 4, or 6 of such Form, the Corporation shall,
concurrently with or promptly after such amendment, supplement or filing,
furnish the Agents with a certificate of the President, the Vice
President--Finance or the Treasurer of the Corporation in form satisfactory to
the Agents to the effect that the statements contained in the certificate
referred to in Section 6(f) hereof which was last furnished to the Agents are
true and correct at the time of such amendment, supplement or filing, as the
case may be, as though made at and as of such time (except that such statements
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate, a
certificate of the same tenor as
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the certificate referred to in said Section 6(f), modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate; provided, however,
that if at the time of such amendment or supplement, the Corporation is not
accepting offers to purchase the Notes or has instructed the Agents to cease
their solicitation of offers to purchase the Notes, then the certificate
required to be delivered pursuant to this Section 9(b) shall not be required
until the Corporation requests that the Agents resume the solicitation of offers
to purchase Notes.
(c) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a pricing supplement
or an amendment or supplement providing solely for a change in the interest
rates or maturities of the Notes or a change in the principal amount of Notes
remaining to be sold or similar changes and other than by the filing of a
document incorporated by reference into the Prospectus other than the documents
specified below) or the Corporation files with the commission an Annual Report
on Form 10-K, a Quarterly Report on Form 10-Q, or a Current Report on Form 8-K
pursuant to Item 1, 2, 4, or 6 of such Form, the Corporation shall,
concurrently with or promptly after such amendment, supplement or filing,
furnish the Agents and their counsel with the written opinion of the General
Counsel or the Assistant General counsel of the Corporation, addressed to the
Agents and dated the date of delivery of such opinion, in form satisfactory to
the Agents, of the same tenor as the opinion referred to in Section 6(e)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended or supplemented to the time of delivery of such
opinion; provided, however, that in lieu of such opinion, such counsel may
furnish the Agent with a letter to the effect that the Agent may rely on such
prior opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such prior opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended or
supplemented to the time of delivery of such letter authorizing reliance);
provided, further, however, that if at the time of such amendment or
supplement, the Corporation is not accepting offers to purchase the Notes or
has instructed the Agents to cease their solicitation of offers to purchase the
Notes, then the opinion or letter required to be delivered pursuant to this
Section 9(c) shall not be required until the
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Corporation requests that the Agents resume the solicitation of offers to
purchase Notes.
(d) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information (other than by the filing of a document incorporated by reference
into the Prospectus other than the documents specified below) or the
Corporation files with the Commission an Annual Report on Form 10-K, a
Quarterly Report on Form 10-Q or a current Report on Form 8-K pursuant to Item
2 or 4 of such Form, the Corporation shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or the
Corporation's then current independent public accountants) to furnish the
Agents, concurrently with or promptly after such amendment, supplement or
filing, a letter, addressed jointly to the Corporation and the Agents and dated
the date of delivery of such letter, in form and substance reasonably
satisfactory to the Agents, of the same tenor as the letter referred to in
Section 6(g) hereof but modified to relate to the Registration Statement and
the Prospectus, as amended and supplemented to the date of such letter, with
such changes as may be necessary to reflect changes in the financial statements
and other information derived from the accounting records of the Corporation;
provided, however, that if the Registration Statement or the Prospectus is
amended or supplemented solely to include financial information as of and for a
fiscal quarter, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP may limit the scope of such letter to the
unaudited financial statements included in such amendment or supplement unless
there is contained therein any other accounting, financial or statistical
information that, in the reasonable judgment of the Agents, should be covered
by such letter, in which event such letter shall also cover such other
information; provided, further, however, that if at the time of such amendment
or supplement, the Corporation is not accepting offers to purchase the Notes or
has instructed the Agents to cease their solicitation of offers to purchase the
Notes, then the letter required to be delivered pursuant to this Section 9(d)
shall not be required until the Corporation requests that the Agents resume the
solicitation of offers to purchase Notes.
SECTION 10. Indemnities. (a) By the Corporation. The
Corporation agrees to indemnify and hold harmless each of you and each person
who controls each of you within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all losses, claims,
damages or liabilities, joint or
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several, to which you, they or any of you or them may become subject under the
Securities Act, the Exchange Act or any other statute or common law, and to
reimburse each such indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating any claims and defending any
actions, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon (i) any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any post-effective
amendment thereof, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus, if used prior to the
issue date of the Prospectus, or contained in the Prospectus (as amended or
supplemented, if the Corporation shall have filed with the Commission any
amendment thereof or supplement thereto), if, in the case of a sale made by the
Agents, used within the period during which the Agents are authorized to solicit
offers to purchase the Notes as provided in Section 2(a)(iv) hereof, or the
omission or alleged omission to state therein (if so used) a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the indemnity agreement contained in this
Section 10(a) shall not apply to any such losses, claims, damages, liabilities
or actions arising out of, or based upon, any such untrue statement or alleged
untrue statement, or any such omission or alleged omission if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Corporation by or on behalf of any of you for use in
connection with the preparation of the Registration Statement, any preliminary
prospectus or the Prospectus or any such amendment thereof or supplement
thereto, or was contained in that part of the Registration Statement
constituting the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee; and provided, further, such indemnity with
respect to the Prospectus or any preliminary prospectus shall not inure to the
benefit of an Agent or a Purchaser (or any person controlling such Agent or such
Purchaser) if the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof from such Agent or such
Purchaser and such person did not receive a copy of the Prospectus (or the
Prospectus as supplemented) excluding documents incorporated
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therein by reference at or prior to the confirmation of the sale of such Notes
to such person in any case where such delivery is required by the Securities Act
and the untrue statement or omission of a material fact contained in the
Prospectus or any preliminary prospectus was corrected in the Prospectus (or the
Prospectus as supplemented). The indemnity agreement contained in this Section
10(a) is subject to the undertaking of the Corporation with respect to
indemnification of officers and directors of the Corporation contained in the
Registration Statement, but only to the extent stated in said undertaking.
(b) By the Agents. Each Agent or Purchaser agrees, in the manner and
to the same extent as set forth in Section 10(a) hereof, to indemnify and hold
harmless the Corporation, each person who controls the Corporation within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act,
each director of the Corporation and each of its officers who shall have signed
the Registration Statement, with respect to any statement in or omission from
the Registration Statement or any post-effective amendment thereof or the Basic
Prospectus, any preliminary prospectus or the Prospectus (as amended or
supplemented, if so amended or supplemented), if such statement or omission was
made in reliance upon and in conformity with information furnished as herein
stated or otherwise furnished in writing to the Corporation by or on behalf of
such Agent or such Purchaser for use in connection with the preparation of the
Registration Statement or any preliminary prospectus or the Prospectus or any
such amendment thereof or supplement thereto.
(c) General. Each indemnified party will, promptly after the
receipt of notice of the commencement of any action against such indemnified
party in respect of which indemnity may be sought from an indemnifying party on
account of an indemnity agreement contained in this Section 10, notify the
indemnifying party in writing of the commencement thereof. The omission of any
indemnified party so to notify an indemnifying party of any such action shall
relieve such indemnifying party from any liability which it may have to such
indemnified party on account of the indemnity agreement contained in this
Section 10, but shall not relieve such indemnifying party from any other
liability which it may have to such indemnified party. Except as provided in
the next succeeding sentence, in case any such action shall be brought against
any indemnified party and it shall notify an indemnifying party of the
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commencement thereof, such indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party, and after notice from such indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party will not be liable to such indemnified party
under this Section 10 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Such indemnified party shall have the right
to employ its own counsel in any such action, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel has been authorized by the indemnifying party in
connection with the defense of such action, (ii) the named parties to any such
action (including any impleaded parties) include both such indemnified party and
the indemnifying party and such indemnified party shall have been advised by
such counsel that representation of both such indemnified party and the
indemnifying party by the same counsel would be inappropriate due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of such
indemnified party, it being understood, however, that the indemnifying party
shall not, in connection with any one such action, or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses with respect to any period during the pendency of such action or
similar or related actions of more than one separate firm of attorneys for all
indemnified parties so named, designated in writing by the Agents or the
Purchaser if the indemnifying party is the Corporation or by the Corporation if
the indemnififying party is any of the Agents or the Purchaser, it being further
understood, however, that the firm of attorneys so designated may be changed
from time to time with respect to different periods during the pendency of such
action or similar or related actions) or (iii) the indemnifying party shall not
have assumed the defense of such action and employed counsel therefor
satisfactory to such indemnified party within a reasonable time after notice of
commencement of such action, in any of which events such fees and expenses shall
be borne by the indemnifying party.
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The indemnifying party shall not be liable for any settlement of any action or
claim effected without its consent, which consent shall not be unreasonably
withheld.
(d) Contribution. If the indemnification provided for in this
Section 10 shall for any reason be unavailable to an indemnified party under
Section 10(a) or 10(b) hereof in respect of any loss, claim, damage or liability
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the
Corporation on the one hand and by each of you on the other from the offering of
the Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Corporation on the one hand and by each of you on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Corporation on
the one hand and either Agent on the other with respect to such offering (or, in
the case of Notes sold pursuant to a Terms Agreement, the aggregate commissions
that would have been received by such Purchaser if such commissions had been
payable). The relative fault of the Corporation on the one hand and each of you
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Corporation or by each of you, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Corporation and each of you agree that it would not
be just and equitable if contributions pursuant to this Section 10(d) were to be
determined by pro rata allocation (even if both of you were treated as one
entity for such purpose) or by any other method of
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30
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 10(d) shall be deemed to include, for purposes
of this Section 10(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such claim.
Notwithstanding the provisions of this Section 10(d), neither Agent shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes sold through such Agent were offered to the public
exceeds the amount of any damages which such Agent or Purchaser has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission (or, in the case of Notes sold pursuant to a
Terms Agreement, the aggregate commissions that would have been received by such
Purchaser if such commissions had been payable). No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Survival of Indemnity and Contribution Agreements. The
respective indemnity and contribution agreements of the Corporation and the
Agents contained in this Section 10, and the representations and warranties of
the Corporation set forth in Section 1 hereof, shall remain operative and in
full force and effect, regardless of any termination or cancelation of this
Agreement or any investigation made by or on behalf of (i) any of you or any
such controlling person of any of you or (ii) the Corporation or any such
controlling person, director or officer of the Corporation and shall survive
the delivery of the Notes, and any successor of any of you or of any such
controlling person or of the Corporation, or any legal representative of any
such controlling person, director or officer, as the case may be, shall be
entitled to the benefit of the respective indemnity and contribution
agreements.
SECTION 11. Status of Each Agent. In soliciting offers to
purchase the Notes from the Corporation pursuant to this Agreement (other than
offers to purchase pursuant to Section 2(b)), each Agent is acting solely as
agent for the Corporation and not as principal. Each Agent will make
reasonable efforts to assist the Corporation
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in obtaining performance by each purchaser whose offer to purchase Notes from
the Corporation has been solicited by such Agent and accepted by the
Corporation, but such Agent shall have no liability to the Corporation in the
event any such purchase is not consummated for any reason. If the Corporation
shall default in its obligations to deliver Notes to a purchaser whose offer it
has accepted, the Corporation shall (i) hold the Agents harmless against any
loss, claim or damage arising from or as a result of such default by the
Corporation and (ii), in particular, pay to the Agents any commission to which
they would be entitled in connection with such sale. The Corporation does not
authorize either Agent to give any information or make any representations,
other than those contained in the Prospectus, as from time to time amended or
supplemented, in connection with the sale of the Notes.
SECTION 12. Representations and Warranties to Survive
Delivery. All representations and warranties of the Corporation contained in
this Agreement, or contained in certificates of officers of the Corporation
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of the termination or cancelation of this Agreement or any
investigation made by or on behalf of any of you or any person controlling
such of you or by or on behalf of the Corporation, and shall survive each
delivery of and payment for any of the Notes.
SECTION 13. Termination. This Agreement may be terminated
for any reason, at any time, by either the Corporation as to any Agent or an
Agent insofar as this Agreement relates to such Agent upon the giving of one
day's written notice of such termination to such Agent or the Corporation, as
the case may be. The provisions of Sections 4(c) (with respect to Notes that
have been sold but not yet delivered and with respect to Notes owned by a
Purchaser), 4(h), 4(j), 5, 10, 11, 12, 15 and 16 hereof shall survive any such
termination.
SECTION 14. Sales of Securities Denominated in a Foreign
Currency. If at any time the Corporation and any of you shall determine
to issue and sell Notes denominated in a currency or currency unit other than
U.S. dollars, which other currency may include a composite currency, the
Corporation and such of you shall execute and deliver a Foreign Currency
Amendment in the form attached hereto as Exhibit D. The Foreign Currency
Amendment shall establish, as appropriate, additions and
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modifications to this Agreement that shall apply to the sales, whether offered
on an agency or principal basis, of all Notes denominated in the currency or
currency unit covered thereby.
SECTION 15. Notices. Except as otherwise provided herein, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if sent by registered mail or transmitted by any
standard form of telecommunication. Notices to the Agents or the Purchaser
shall be directed to them as follows: ▇▇▇▇▇▇ Brothers, ▇▇▇▇▇▇ Brothers Inc., ▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Medium-Term
Note Department, 12th Floor; and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Credit Department. Notice to the Corporation
shall be directed to it as follows: Air Products and Chemicals, Inc., ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate
Secretary.
SECTION 16. Binding Effect; Benefits. This Agreement shall be
binding upon each of you, your respective successors, the Corporation, and its
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only each of you and these persons, except that (a) the
indemnity agreement of the Corporation contained in Section 10 hereof shall also
be deemed to be for the benefit of the person or persons, if any, who control
each of you within the meaning of Section 15 of the Securities Act, and (b) the
indemnity agreement of the Agents contained in Section 10 hereof shall be deemed
to be for the benefit of directors of the Corporation, officers of the
Corporation who have signed the Registration Statement and any persons
controlling the Corporation within the meaning of Section 15 of the Securities
Act. Nothing in this Agreement is intended or shall be considered to give any
person, other than the persons referred to in this Section, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. The term "successor" or the term "successors and
assigns" as used in this Agreement shall not include any purchaser of Notes from
an Agent.
SECTION 17. Governing Law; Counterparts. This Agreement
shall be governed by and construed in accordance with the laws of New York.
This Agreement may be executed
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in counterparts and the executed counterparts shall together constitute a single
instrument.
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
AIR PRODUCTS AND CHEMICALS, INC.,
by
-------------------------------
Title: Vice President and
Treasurer
CONFIRMED AND ACCEPTED, as of the
date first above written:
▇▇▇▇▇▇ BROTHERS INC.
by
-------------------------
Name:
-------------------
Title:
------------------
▇▇▇▇▇▇▇, SACHS & CO.
by
-------------------------
Name:
-------------------
Title:
------------------
34
EXHIBIT A
AIR PRODUCTS AND CHEMICALS, INC.
Medium-Term Notes, Series E
Schedule of Payments
The Corporation agrees to pay each Agent a commission equal to
the following percentage of the aggregate U.S. dollar equivalent of the
principal amount of Notes sold by such Agent:
Term Commission Rate
---- ---------------
9 months to less than 12 months .125%
---------
12 months to less than 18 months .150%
---------
18 months to less than 2 years .200%
---------
2 years to less than 3 years .250%
---------
3 years to less than 4 years .350%
---------
4 years to less than 5 years .450%
---------
5 years to less than 6 years .500%
---------
6 years to less than 7 years .550%
---------
7 years to less than 10 years .600%
---------
10 years to less than 15 years .625%
---------
15 years to less than 20 years .650%
---------
20 years to 30 years .750%
---------
35
EXHIBIT B
MEDIUM-TERM NOTES, SERIES E
ADMINISTRATIVE PROCEDURES
Medium-Term Notes, Series E Due from 9 months to 30 years from
date of issue (the "Notes") are to be offered on a continuing basis by Air
Products and Chemicals, Inc. (the "Corporation") through ▇▇▇▇▇▇ Brothers, a
division of ▇▇▇▇▇▇ Brothers Inc., and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., and such other
agents as the Corporation shall appoint from time to time on terms
substantially identical to those set forth in the Agency Agreement (each an
"Agent", and, collectively, the "Agents"), who, as agents have agreed to use
their reasonable best efforts to solicit offers to purchase the Notes from the
Corporation. The Agents may also purchase Notes as principal for resale
pursuant to a Terms Agreement.
The Notes are being sold pursuant to an Agency Agreement
between the Corporation and the Agents dated [ ], 1996 (as it may be
amended from time to time, the "Agency Agreement") to which these administrative
procedures are attached as an exhibit. The Corporation has reserved the right
to sell Notes directly on its own behalf. The Notes will be issued pursuant to
an Indenture, dated as of January 10, 1995 (as it may be amended or
supplemented from time to time, the "Indenture"), between the Corporation and
First Union National Bank (formerly First Fidelity Bank, National Association)
as trustee (the "Trustee"). The Notes will rank equally with all other
unsecured and unsubordinated indebtedness of the Corporation and will have been
registered with the Securities and Exchange Commission (the "Commission"). A
Registration Statement (the "Registration Statement") with respect to the Notes
has been filed with the Commission. The Prospectus included in the Registration
Statement that describes the terms of the Notes, as supplemented from time to
time, is herein referred to as the "Prospectus Supplement". The supplement to
the Prospectus that sets forth the specific terms of the Notes is herein
referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and
represented by one or more fully registered Notes (each, a "Book-Entry Note")
delivered to the Trustee, as agent for The Depository Trust Corporation
("DTC"), and recorded in the book-entry system maintained by DTC, or
(b) in certificated form delivered to the purchaser thereof or a person
designated by such purchaser. Only Notes
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denominated in U.S. dollars may be issued as Book-Entry Notes. Owners of
beneficial interests in Notes issued in book-entry form will be entitled to
physical delivery of Notes in certificated form equal in principal amount to
their respective beneficial interests only upon certain limited circumstances
described in the Prospectus Supplement.
General procedures relating to the issuance of all Notes are
set forth in Part I hereof. Additionally, Notes issued in book-entry form will
be issued in accordance with the procedures set forth in Part II hereof and
Notes issued in certificated form will be issued in accordance with the
procedures set forth in Part III hereof. Capitalized terms used herein that
are not otherwise defined shall have the meanings ascribed thereto in the
Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Price to Public: Each Note will be issued at 100% of principal amount,
unless otherwise determined by the Corporation.
Date of Issuance/ Each Note will be dated as of the date of its
Authentication: authentication by the Trustee. Each Note shall
also bear an original issue date (the "Original
Issue Date"). The Original Issue Date shall remain
the same for all Notes subsequently issued upon
transfer, exchange or substitution of an original
Note regardless of their dates of authentication.
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Maturities: Each Note will mature on a Business Day (as defined
below) selected by the purchaser and agreed to by
the Corporation which is not less than nine months
nor more than thirty years from its Original Issue
Date; provided, however, that Notes bearing
interest at rates determined by reference to
selected indices ("Floating Rate Notes") will
mature on an Interest Payment Date.
Registration: Notes will be issued only in fully registered form.
Calculation of In the case of Fixed Rate Notes, interest (including
Interest: payments for partial periods) will be calculated
and paid on the basis of a 360-day year of twelve
30-day months. In the case of Floating Rate Notes,
interest will be calculated in the manner set forth
in the Prospectus Supplement.
Acceptance and The Corporation shall have the sole right to accept
Rejection of offers to purchase Notes from the Corporation and
Offers: may reject any such offer in whole or in part.
Each Agent shall communicate to the Corporation,
orally or in writing, each reasonable offer to
purchase Notes from the Corporation received by it.
Each Agent shall have the right, in its discretion
reasonably exercised, without notice to the
Corporation, to reject any offer to purchase Notes
through it in whole or in part.
Preparation of If any offer to purchase a Note is accepted by the
Pricing Corporation, the Corporation, with the approval of
Supplement:
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38
the Agent which presented such offer (the "Presenting
Agent"), will prepare a Pricing Supplement (a
"Pricing Supplement") reflecting the terms of such
Note and file 10 Pricing Supplements relating to the
Notes and the plan of distribution thereof with the
Commission in accordance with Rule 424 under the
Securities Act of 1933 and will supply by next day
mail or telecopy at least one copy thereof (and
additional copies if requested) to the Presenting
Agent to arrive no later than 11:00 a.m. on the
Business Day following the trade date or as soon as
practicable thereafter under the circumstances. The
Presenting Agent will cause a Prospectus and Pricing
Supplement to be delivered to the purchaser of the
Note. Such Prospectus and Pricing Supplement will be
delivered to the Presenting Agent at the following
applicable address: If to ▇▇▇▇▇▇ Brothers Inc., by
telecopy to ▇▇▇▇▇▇ Brothers Inc. c/o ADP Prospectus
Services, Attention: ▇▇▇▇ ▇▇▇▇, Telecopy: (516)
249-7942 and by hand to ▇▇▇▇▇▇ Brothers Inc.,
Medium-Term Note Department, 3 World Financial
Center, 9th Floor, New York, N.Y. 10285-0900,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; if to ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. by telecopy and by hand to ▇▇▇▇▇▇▇, Sachs & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. 10004,
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Telephone: (212)
902-1482, Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; and if any other
agent, at such address as they shall specify.
In each instance that a Pricing Supplement is
prepared, the Agents
B-4
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will affix the Pricing Supplement to the Prospectus
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 of immediately available funds in U.S. dollars
by the Corporation in payment for a Note and the
authentication and delivery of such Note shall, with
respect to such Note, constitute "settlement". Offers
accepted by the Corporation will be settled from one to
five Business Days, or at a time as the purchaser and the
Corporation shall agree, pursuant to the timetable for
settlement set forth in Parts II and III hereof under
"Settlement Procedures" with respect to Book-Entry Notes
and Certificated Notes, respectively.
In the event of a purchase of Notes by any Agent as
principal, appropriate settlement details will be as agreed
between the Agent and the Corporation pursuant to the
applicable Terms Agreement. In the event of sales of
any Notes denominated in a foreign currency or currency
unit, reference is made to Section 14 of the Agency
Agreement regarding amendments to the Agency Agreement
(including these Administrative Procedures) for sales of
Notes so denominated.
Procedure for When a decision has been reached to: change the posted
Changing Rates interest rate, spread, the Specified Currency or any other
or other Variable variable term on any Notes being sold by the Corporation,
Terms: the Corporation will promptly advise the Agents and the
B-5
40
Agents will forthwith suspend solicitation of offers
to purchase such Notes. The Agents will telephone
the Corporation with recommendations as to the
changed interest rates or other variable terms. At
such time as the Corporation advises the Agents of
the new posted interest rates, spread or other
variable terms, the Agents may resume solicitation of
offers to purchase such Notes. Until such time only
"indications of interest" may be recorded.
Immediately after acceptance by the Corporation of an
offer to purchase at a new posted interest rate,
spread or new variable term, the Corporation, the
Presenting Agent and the Trustee shall follow the
procedures set forth under the applicable "Settlement
Procedures".
Suspension of The Corporation may instruct the Agents to suspend
Solicitation; solicitation of purchases at any time. Upon receipt of
Amendment or such instructions the Agents will forthwith suspend
Supplement: solicitation of offers to purchase from the Corporation
until such time as the Corporation has advised them that
solicitation of offers to purchase may be resumed. If the
Corporation decides to amend the Registration Statement
(including incorporating any documents by reference
therein) or supplement any of such documents (other than to
change posted interest rates, spreads or other variable
terms), it will notify the Agents and will furnish the
Agents and their counsel with copies of the amendment or
supplement in accordance with Section 4 of the Agency
Agreement. One copy of such filed document, along with a copy
B-6
41
of the cover letter sent to the Commission, will be
delivered or mailed to the Agents at the following
respective addresses: ▇▇▇▇▇▇ Brothers Inc.,
Medium-Term Note Department, 3 World Financial Center
(12th Floor), New York, N.Y. 10285-1200; and ▇▇▇▇▇▇▇,
Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇.▇. 10004, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
In the event that at the time the solicitation of offers to
purchase from the Corporation is suspended (other than to
change the posted interest rates, spreads or other variable
terms) there shall be any orders outstanding which have not
been settled, the Corporation will promptly advise the
Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as theretofore amended
and/or supplemented as in effect at the time of the
suspension may be delivered in connection with the
settlement of such orders. The Corporation will have the
sole responsibility for such decision and for any
arrangements which may be made in the event that the
Corporation determines that such orders may not be settled
or that copies of such Prospectus may not be so delivered.
Delivery of A copy of the most recent Prospectus, Prospectus Supplement
Prospectus: and Pricing Supplement must accompany or precede the
earlier of (a) the written confirmation of a sale sent to a
customer or his agent and (b) the delivery of Notes to a
customer or his agent.
B-7
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Authenticity of The Corporation will provide to the Trustee a list of the
Signatures: names of its representatives that are authorized to
communicate the purchase information and to confirm such
purchase information. The Trustee will provide to the
Corporation and the Agents a list of its representatives
who are authorized to take all necessary action to complete
the terms of the Notes and to otherwise complete the
procedures set forth herein that are applicable to the
Trustee, but the Agents will have no obligation or
liability to the Corporation or the Trustee in respect of
the authenticity of the signature of any officer, employee
or agent of the Corporation or the Trustee on any Note.
Documents Incorpo- The Corporation shall supply the Agents with an adequate
rated by supply of all documents incorporated by reference in the
Reference: Registration Statement.
Business Day: "Business Day" shall mean any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or
regulation to close in New York, New York, or (i) with
respect to Notes denominated in a Foreign Currency, the
principal financial center of the country of the Foreign
Currency, (ii) with respect to Notes denominated in
European Currency Units, Brussels, Belgium, or (iii) with
respect to Notes which will bear interest based on a
specified percentage of London interbank offered quotations
("LIBOR"), London, England.
B-8
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Advertising Costs: The Corporation will determine with the Agents the amount
and nature of advertising that may be appropriate in
offering the Notes. Advertising expenses incurred with the
consent of the Corporation will be paid by the Corporation.
Trustee Not To Nothing herein shall be deemed to require the Trustee to
Risk Funds: use or expend its own funds in connection with any payments
to the Corporation, the Agents or any purchaser, it being
understood by all parties that payments made by the Trustee
to the Corporation, the Agents or any purchaser shall be made
only to the extent that funds are provided to the Trustee for
such purpose.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in
book-entry form for eligibility in the book-entry system maintained by DTC, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under a
Letter of Representations from the Corporation and the Trustee to DTC dated
[ ], 1996, and a Medium-Term Note Certificate Agreement dated
December 27, 1989 (the "Certificate Agreement"), between the Trustee and DTC,
and its obligations as a participant in DTC, including DTC's Same-Day Funds
Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in book-entry form having the
same Original Issue Date, interest rate and Maturity Date,
and if a Currency Indexed Note, the same Specified
Currency, Indexed Currency and Base Exchange Rate and if a
Commodity Indexed Note,
B-9
44
the same comparable terms (collectively, the "Fixed
Rate Terms") will be represented initially by a
single global security in fully registered form
without coupons (each, a "Book-Entry Note"); and all
Floating Rate Notes issued in book-entry form having
the same Original Issue Date, base rate upon which
interest may be determined (each, a "Base Rate"),
which may be the Commercial Paper Rate, the Treasury
Rate, LIBOR, or any other rate set forth by the
Corporation, Initial Interest Rate, Index Maturity,
Spread or Spread Multiplier, if any, minimum interest
rate, if any, maximum interest rate, if any, and
Maturity Date, and if a Currency Indexed Note, the
same Specified Currency, Indexed Currency and Base
Exchange Rate and if a Commodity Indexed Note, the
same comparable terms (collectively, "Floating Rate
Terms") will be represented initially by a single
Book-Entry Note.
Each Book-Entry Note will be dated and issued as of the
date of its authentication by the Trustee. Each Book-
Entry Note will bear an Original Issue Date, which will be
(a) with respect to an original Book-Entry Note (or any
portion thereof), its Original Issue Date and (b) with
respect to any Book-Entry Note (or portion thereof) issued
subsequently upon exchange of a Book-Entry Note or in lieu
of a destroyed, lost or stolen Book-Entry Note, the most
recent Interest Payment Date to which interest has been
paid or duly provided for on the predecessor
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Book-Entry Note or Notes (or if no such payment or
provision has been made, the Original Issue Date of
the predecessor Book-Entry Note or Notes),
regardless of the date of authentication of such
subsequently issued Book-Entry Note. No Book-Entry
Note shall represent any Note issued in certificated
form.
Identification: The Corporation has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of approximately 900 CUSIP
numbers which have been reserved for and which relate to
Book-Entry Notes and the Corporation has delivered to the
Trustee and DTC such list of such CUSIP numbers. The
Corporation will assign CUSIP numbers to Book-Entry Notes
as described below under Settlement Procedure B. DTC will
notify the CUSIP Service Bureau periodically of the CUSIP
numbers that the Corporation has assigned to Book-Entry
Notes. The Trustee will notify the Corporation at any
time when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Book-Entry Notes and, if it deems
necessary, the Corporation will reserve additional CUSIP
numbers for assignment to Book-Entry Notes. Upon
obtaining such additional CUSIP numbers, the Corporation
will deliver a list of such additional numbers to the
Trustee and DTC. Book-Entry Notes having an aggregate
principal amount in excess of $150,000,000 and otherwise
required to be represented by the same Global Certificate
will instead be
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46
represented by two or more Global Certificates which
shall all be assigned the same CUSIP number.
Registration: Each Book-Entry Note will be registered in the name of
Cede & Co., as nominee for DTC, on the register maintained
by the Trustee under the Indenture. The beneficial owner
of a Note issued in book-entry form (or one or more
indirect participants in DTC designated by such
owner) will designate one or more participants in DTC
(with respect to such Note issued in book-entry form,
the "Participants") to act as agent for such
beneficial owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book- entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such Note issued in book-entry form in the
account of such Participants. The ownership interest
of such beneficial owner in such Note issued in
book-entry form will be recorded through the records
of such Participants or through the separate records
of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect participants
in DTC) acting on behalf of beneficial transferors and
transferees of such Book-Entry Note.
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Exchanges: The Trustee may deliver to DTC and the CUSIP Service
Bureau at any time a written notice specifying (a)
the CUSIP numbers of two or more Book-Entry Notes
outstanding on such date that represent Book-Entry
Notes having the same Fixed Rate Terms or Floating
Rate Terms, as the case may be (other than Original
Issue Dates), and for which interest has been paid to
the same date; (b) a date, occurring at least 30 days
after such written notice is delivered and at least
30 days before the next Interest Payment Date for the
related Notes issued in book-entry form, on which
such Book-Entry Notes shall be exchanged for a single
replacement Book-Entry Note; and (c) a new CUSIP
number, obtained from the Corporation, to be assigned
to such replacement Book-Entry Note. Upon receipt of
such a notice, DTC will send to its Participants
(including the Trustee) a written reorganization
notice to the effect that such exchange will occur on
such date. Prior to the specified exchange date, the
Trustee will deliver to the CUSIP Service Bureau
written notice setting forth such exchange date and
the new CUSIP number and stating that, as of such
exchange date, the CUSIP numbers of the Book-Entry
Notes to be exchanged will no longer be valid. On
the specified exchange date, the Trustee will
exchange such Book-Entry Notes for a single
Book-Entry Note bearing the new CUSIP number and the
CUSIP numbers of the exchanged Book-Entry Notes will,
in accordance with CUSIP Service Bureau procedures,
be canceled and not immediately
B-13
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reassigned. Notwithstanding the foregoing, if the
Book-Entry Notes to be exchanged exceed $150,000,000
in aggregate principal amount, one replacement
Book-Entry Note will be authenticated and issued to
represent $150,000,000 of principal amount of the
exchanged Book-Entry Notes and an additional
Book-Entry Note or Notes will be authenticated and
issued to represent any remaining principal amount of
such Book-Entry Notes (see "Denominations" below).
Denominations: All Notes issued in book-entry form will be denominated in
U.S. dollars. Notes issued in book-entry form will be
issued in denominations of $100,000 and any larger
denomination which is an integral multiple of $1,000.
Book-Entry Notes will be denominated in principal amounts
not in excess of $150,000,000. If one or more Notes
issued in book-entry form having an aggregate principal
amount in excess of $150,000,000 would, but for the
preceding sentence, be represented by a single Book-Entry
Note, then one Book-Entry Note will be issued to represent
$150,000,000 principal amount of such Note or Notes issued
in book-entry form and an additional Book-Entry Note or
Notes will be issued to represent any remaining principal
amount of such Note or Notes issued in book-entry form.
In such a case, each of the Book-Entry Notes representing
such Note or Notes issued in book-entry form shall be
assigned the same CUSIP number.
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Interest: General. Interest, if any, on each Note issued in
book-entry form will accrue from the Original Issue
Date for the first interest period or the last date
to which interest has been paid, if any, for each
subsequent interest period. Each payment of interest
on a Note issued in book-entry form will include
interest accrued through the day preceding, as the
case may be, the Interest Payment Date (provided that
in the case of Floating Rate Notes which reset daily
or weekly, interest payments will include interest
accrued to but including the Record Date immediately
preceding the Interest Payment Date), or to but
excluding the Maturity Date (each Maturity Date is
referred to herein as "Maturity"). Interest payable
at Maturity of a Note issued in book-entry form will
be payable to the person to whom the principal of
such Note is payable. DTC will arrange for each
pending deposit message described under Settlement
Procedure C below to be transmitted to Standard &
Poor's, which will use the information in the message
to include certain terms of the related Book-Entry
Note in the appropriate daily bond report published
by Standard & Poor's Corporation.
Record Dates. The record date (the "Record Date") with
respect to any Interest Payment Date shall be the date 15
calendar days (whether or not a Business Day) preceding
such Interest Payment Date.
Interest Payment Dates. Interest payments will be made on
each
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50
Interest Payment Date commencing with the first
Interest Payment Date following the Original Issue Date;
provided, however, the first payment of interest on any
Book-Entry Note originally issued between a Record Date
and an Interest Payment Date will occur on the Interest
Payment Date following the next Record Date.
If an Interest Payment Date with respect to any Floating
Rate Note issued in book-entry form would otherwise fall
on a day that is not a Business Day with respect to such
Note, such Interest Payment Date will be the following day
that is a Business Day with respect to such Note, except
that in the case of a LIBOR Note, if such day falls in the
next calendar month, such Interest Payment Date will be
the preceding day that is a London Business Day.
Fixed Rate Notes. Interest payments on Fixed Rate Notes
issued in book-entry form will be made semiannually on
June 15 and December 15 of each year unless otherwise
specified in such Note, and at Maturity.
Floating Rate Notes. Interest payments on Floating Rate
Notes issued in book-entry form will be made as specified
in the Floating Rate Note.
Notice of Interest Payments and Record Dates. On the
first Business Day of January, April, July and October of
each year, the Trustee will deliver to the Corporation and
DTC a written list of Record Dates and Interest
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51
Payment Dates that will occur during the six-month period
beginning on such first Business Day with respect to
Floating Rate Notes issued in book-entry form. Promptly
after each Interest Determination Date for Floating Rate
Notes issued in book-entry form, the Trustee will notify
Standard & Poor's Corporation of the interest rates
determined on such Interest Determination Date.
Payments of Payments of Interest Only. Promptly after each Record
Principal Date, the Trustee will deliver to the Corporation and DTC
and Interest: a written notice specifying by CUSIP number the amount of
interest to be paid on each Book-Entry Note on the following
Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts.
DTC will confirm the amount payable on each Book-Entry Note
on such Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Corporation. On
such Interest Payment Date, the Corporation will pay to
the Trustee, and the Trustee in turn will pay to DTC, such
total amount of interest due (other than at Maturity), at
the times and in the manner set forth below under "Manner
of Payment".
Payments at Maturity. On or about the first Business Day
of each month, the Trustee will deliver to the Corporation
and DTC a written list of principal, interest and premium,
if any, to be paid on each Book-Entry Note maturing either
at the Maturity Date or on a Redemption Date in the
following
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52
month. The Trustee, the Corporation and DTC will
confirm the amounts of such principal and interest
payments with respect to a Book-Entry Note on or
about the fifth Business Day preceding the Maturity
of such Book-Entry Note. At such Maturity, the
Corporation will pay to the Trustee, and the Trustee
in turn will pay to DTC, the principal amount of such
Note, together with interest and premium, if any, due
at such Maturity, at the times and in the manner set
forth below under "Manner of Payment". If any
Maturity of a Book-Entry Note is not a Business Day,
the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue
on such payment for the period from and after such
Maturity. Promptly after payment to DTC of the
principal, interest and premium, if any, due at the
Maturity of such Book-Entry Note, the Trustee will
cancel such Book-Entry Note and deliver it to the
Corporation with an appropriate debit advice. On the
first Business Day of each month, the Trustee will
deliver to the Corporation a written statement
indicating the total principal amount of outstanding
Book-Entry Notes as of the immediately preceding
Business Day.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Book-Entry Notes on
any Interest Payment Date or at Maturity shall be paid by
the Corporation to the Trustee in funds available for use
by the Trustee as of 9:30 a.m.,
▇-▇▇
▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ time, on such date. The Corporation
will make such payment on such Book-Entry Notes by
instructing the Trustee to withdraw funds from an
account maintained by the Corporation at the Trustee.
The Corporation will confirm such instructions in
writing to the Trustee. Prior to 10:00 a.m., New
York City time, on such date or as soon as possible
thereafter, the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions in
a form previously specified by DTC) to an account at
the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of interest, principal and
premium, if any, due on a Book-Entry Note on such date.
Thereafter on such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect,
such amounts in funds available for immediate use to
the respective Participants in whose names such Notes
are recorded in the book-entry system maintained by
DTC. Neither the Corporation nor the Trustee shall
have any responsibility or liability for the payment
by DTC of the principal of, or interest on, the
Book-Entry Notes to such Participants.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on
a Note will be determined and withheld by the Participant,
indirect participant in DTC or other person responsible
for forwarding
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54
payments and materials directly to the beneficial
owner of such Note.
Settlement Settlement Procedures with regard to each Note in book-
Procedures: entry form sold by each Agent, as agent of the
Corporation, will be as follows:
A. The Presenting Agent will advise the Corporation in
writing, by telex or facsimile, or by telephone
(with written confirmation on the next Business Day)
of the following Settlement information:
1. Taxpayer identification number of the
purchaser.
2. Principal amount of the Note.
3.1 Fixed Rate Notes:
(a) interest rate.
3.2 Floating Rate Notes:
(a) base rate;
(b) initial interest rate;
(c) spread or spread multiplier,
if any;
(d) interest reset dates;
(e) reset period;
(f) interest payment dates;
(g) index maturity;
(h) calculation agent;
(i) maximum interest rate, if any;
(j) minimum interest rate, if any;
and
(k) interest determination dates.
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3.3 Currency Indexed Notes:
(a) specified currency
(b) indexed currency
(c) face amount
(d) base exchange rate
(e) determination agent
(f) reference dealers
(g) base interest rate, if any
3.4 Commodity Indexed Note:
(a) applicable terms
4. Price to public of the Note.
5. Trade date.
6. Settlement Date.
7. Maturity Date.
8. Redemption or repayment provisions, if any.
9. Net proceeds to the Corporation.
10. Agent's commission (to be paid in the form
of a discount from the proceeds remitted to
the Corporation upon Settlement).
11. If applicable, total amount of original
issue discount ("OID"), yield to maturity
and the initial accrual period OID.
12. Any other provisions.
B. The Corporation will assign a CUSIP number to the
Book-Entry Note representing such Note and
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then advise the Trustee by electronic transmission of
the above settlement information received from the
Presenting Agent, such CUSIP number and the name of
the Agent.
C. The Trustee will communicate to DTC and the Agent
through DTC's Participant Terminal System, a pending
deposit message specifying the following settlement
information:
1. The information set forth in Settlement
Procedure A.
2. Identification numbers of the participant
accounts maintained by DTC on behalf of the
Trustee and the Agent.
3. Identification as a Fixed Rate Book-Entry
Note or a Floating Rate Book-Entry Note.
4. Initial Interest Payment Date for such Note,
number of days by which such date succeeds
the related record date for DTC purposes
(or, in the case of Floating Rate Notes
which reset daily or weekly, the date five
calendar days preceding the Interest Payment
Date) and, if then calculable, the amount of
interest payable on such Interest Payment
Date (which amount shall have been confirmed
by the Trustee).
▇-▇▇
▇▇
▇. CUSIP number of the Book-Entry Note
representing such Note.
6. Whether such Book-Entry Note represents any
other Notes issued or to be issued in book-
entry form.
D. The Corporation will provide to the Trustee the
above Settlement information received from the Agent
and shall cause the Trustee to issue and
authenticate a Book-Entry Note representing such
Note in a form that has been approved by the
Corporation, the Agents and the Trustee.
E. The Trustee will authenticate the Book-Entry Note
representing such Note.
F. DTC will credit such Note to the participant account
of the Trustee maintained by DTC.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to the Trustee's participant
account and credit such Note to the participant
account of the Presenting Agent maintained by DTC
and (ii) to debit the settlement account of the
Presenting Agent and credit the settlement account
of the Trustee maintained by DTC, in an amount equal
to the price of such Note less such Agent's
commission. Any entry of such a deliver order shall
be deemed to constitute a representation and
warranty by the Trustee to
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DTC that (i) the Book-Entry Note representing
such Note has been issued and authenticated and
(ii) the Trustee is holding such Book-Entry
Note pursuant to the Medium-Term Note
Certificate Agreement between the Trustee and
DTC.
H. The Presenting Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note to the
Presenting Agent's participant account and credit
such Note to the participant account of the
Participants maintained by DTC and (ii) to debit the
settlement accounts of such Participants and credit
the settlement account of the Presenting Agent
maintained by DTC, in an amount equal to the initial
public offering price of such Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures G and H
will be settled in accordance with SDFS operating
procedures in effect on the Settlement Date.
J. The Trustee will credit to an account of the
Corporation maintained at the Trustee funds
available for immediate use in the amount
transferred to the Trustee in accordance with
Settlement Procedure G.
K. The Trustee will send a copy of the Book-Entry Note
by first class mail to the Corporation together with
a statement
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setting forth the principal amount of
Notes outstanding as of the related Settlement Date
after giving effect to such transaction and all
other offers to purchase Notes of which the
Corporation has advised the Trustee but which have
not yet been settled.
L. The Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participant with respect to such Note a confirmation
order through DTC's Participant Terminal System or
by mailing a written confirmation to such purchaser.
Settlement Proce- For orders of Notes accepted by the Corporation,
dures Timetable: Settlement Procedures "A" through "L" set forth above
shall be completed as soon as possible but not later than
the respective times (New York City time) set forth below:
Settlement
Procedure Time
---------- ----
A-B 11:00 a.m. on the trade date
C 2:00 p.m. on the trade date
D 3:00 p.m. on the Business
Day before Settlement Date
E 9:00 a.m. on Settlement
Date
F 10:00 a.m. on Settlement
Date
G-H No later than 2:00 p.m. on
Settlement Date
I 4:45 p.m. on Settlement
Date
▇-▇ 5:00 p.m. on Settlement
Date
If a sale is to be settled more
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than one Business Day after the sale date,
Settlement Procedures A, B, and C may, if
necessary, be completed at any time prior to the
specified times on the first Business Day after
such sale date. In connection with a sale which
is to be settled more than one Business Day
after the trade date, if the initial interest
rate for a Floating Rate Note is not known at
the time that Settlement Procedure A is
completed, Settlement Procedures B and C shall
be completed as soon as such rates have been
determined, but no later than 11:00 a.m. and
2:00 p.m., New York City time, respectively, on
the second Business Day before the Settlement
Date. Settlement Procedure I is subject to
extension in accordance with any extension of
Fedwire closing deadlines and in the other
events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Note issued in book-entry
form is rescheduled or canceled, the Trustee
will deliver to DTC, through DTC's Participant
Terminal System, a cancelation message to such
effect by no later than 2:00 p.m., New York City
time, on the Business Day immediately preceding
the scheduled Settlement Date.
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Failure to Settle: If the Trustee fails to enter an SDFS deliver order, with
respect to a Book-Entry Note issued in book-entry form
pursuant to Settlement Procedure G, the Trustee may
deliver to DTC, through DTC's Participant Terminal System,
as soon as practicable a withdrawal message instructing
DTC to debit such Note to the participant account of the
Trustee maintained at DTC. DTC will process the
withdrawal message, provided that such participant account
contains a principal amount of the Book-Entry Note
representing such Note that is at least equal to the
principal amount to be debited. If withdrawal messages
are processed with respect to all the Notes represented by
a Book-Entry Note, the Trustee will ▇▇▇▇ such Book-Entry
Note "canceled", make appropriate entries in its records
and send such canceled Book-Entry Note to the Corporation.
The CUSIP number assigned to such Book-Entry Note shall,
in accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If withdrawal
messages are processed with respect to a portion of the
Notes represented by a Book-Entry Note, the Trustee will
exchange such Book-Entry Note for two Book-Entry Notes,
one of which shall represent the Book-Entry Notes for which
withdrawal messages are processed and shall be canceled
immediately after issuance, and the other of which shall
represent the other Notes previously represented by the
Surrendered Book-Entry Note and
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62
shall bear the CUSIP number of the surrendered
Book-Entry Note. If the purchase price for any Book-Entry
Note is not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC, acting
on behalf of such purchaser), such Participants and, in
turn, the related Agent may enter SDFS deliver orders
through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures G and H,
respectively. Thereafter, the Trustee will deliver the
withdrawal message and take the related actions described
in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the
applicable Agent to perform its obligations hereunder or
under the Distribution Agreement, the Corporation will
reimburse such Agent on an equitable basis for its loss of
the use of funds during the period when the funds were
credited to the account of the Corporation. An Agent will
not be entitled to any commission with respect to any Note
which the purchaser does not accept or make payment for.
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then in
effect. In the event of a failure to settle with respect to
a Note that was to have been represented by a Book-Entry Note
also representing by a Book-Entry Note also representing other
Notes, the Trustee will provide, in accord-
B-28
63
ance with Settlement Procedure E, for the authentication and
issuance of a Book-Entry Note representing such remaining
Notes and will make appropriate entries in its records.
PART III: PROCEDURES FOR NOTES ISSUED
IN CERTIFICATED FORM
Denominations: The Notes will be issued in denominations of U.S. $100,000
and integral multiples of U.S. $1,000 in excess thereof,
or, in the case of Notes denominated in a Specified
Currency other than U.S. dollars, the denominations set
forth in the Prospectus Supplement and the applicable
Pricing Supplement.
Interest: Each Note will bear interest in accordance with its terms.
Interest will begin to accrue on the original issue date
of a Note for the first interest period and on the most
recent interest payment date to which interest has been
paid for all subsequent interest periods. Each payment of
interest shall include interest accrued to, but excluding,
the date of such payment (provided that in the case of
Floating Rate Notes which reset daily or weekly, interest
payments will include interest accrued to but including the
Record Date immediately preceding the Interest Payment Date),
or to but excluding the Maturity Date. Interest payments
in respect of Fixed Rate Notes will be made semiannually
on June 15 and December 15 of each year unless otherwise
specified in such
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64
Note, and at maturity. However, the first payment of interest
on any Note issued between a Record Date and an Interest
Payment Date will be made on the Interest Payment Date
following the next succeeding Record Date. The record date
(the "Record Date") for any Interest Payment Date shall be
the date (whether or not a Business Day) 15 calendar days
immediately preceding such Interest Payment Date.
Interest at maturity will be payable to the person to whom
the principal is payable.
For additional special provisions relating to Floating Rate
Notes, see the Prospectus Supplement.
Payments of Princi- Upon presentment and delivery of the Note, the Trustee
pal and Interest: will pay the principal amount of each Note at maturity and
the final installment of interest in immediately available
funds. All interest payments on a Note, other than
interest due at maturity, will be made by check drawn on
the Trustee and mailed by the Trustee to the person
entitled thereto as provided in the Note. However,
holders of Notes of like tenor and terms in aggregate
principal amount exceeding U.S. $5 million or the
equivalent thereof in a Specified Currency shall be
entitled to receive payments of interest, other than at
maturity, by wire transfer of immediately available funds
to an account maintained by such holder with a bank located
in the United States for payments in U.S. Dollars or the
country of the Specified Currency for other payments,
provided that appropriate wire
B-30
65
transfer instructions have been received in writing by
the Trustee not less than 15 calendar days prior to the
applicable Interest Payment Date. Any payment of principal
or interest required to be made on an Interest Payment Date
or at maturity of a Note which is not a Business Day need
not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as
if made on the Interest Payment Date or at maturity, as
the case may be, and no interest shall accrue for the
period from and after such Interest Payment Date or
maturity.
The Trustee will provide monthly to the Corporation a list
of the principal and interest (and premium, if any) in
each currency to be paid on Notes maturing in the next
succeeding month. The Trustee will be responsible for
withholding taxes on interest paid as required by
applicable law.
Notes presented to the Trustee at maturity for payment
will be canceled by the Trustee. All canceled Notes held
by the Trustee shall be destroyed, and the Trustee shall
furnish to the Corporation a certificate with respect to
such destruction.
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66
Settlement Proce- Settlement Procedures with regard to each Note purchased
dures: through any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the Corporation
in writing, by telex or facsimile, or by telephone (with
written confirmation on the next Business Day) of the
following Settlement information with regard to each Note:
1. Exact name in which the Note is to be registered
(the "Registered Owner").
2. Exact address or addresses of the Registered Owner
for delivery, notices and payments of principal and
interest.
3. Taxpayer identification number of the Registered
Owner.
4. Principal amount of the Note.
5. Denomination of the Note.
6.1 Fixed Rate Notes:
(a) interest rate.
6.2 Floating Rate Notes:
(a) base rate;
(b) initial interest rate;
(c) spread or spread multiplier, if any;
(d) interest reset dates;
(e) reset period;
(f) interest payment dates;
(g) index maturity;
(h) calculation agent;
B-32
67
(i) maximum interest rates, if
any; and
(j) minimum interest rate, if
any; and
(k) interest determination dates.
6.3 Currency Indexed Notes:
(a) specified currency;
(b) indexed currency;
(c) face amount;
(d) base exchange rate;
(e) determination agent;
(f) reference dealers; and
(g) base interest rate, if any.
6.4 Commodity Indexed Note:
(a) applicable terms.
7. Price to public of the Note (including currency).
8. Settlement Date.
9. Maturity Date.
10. Redemption or repayment provisions, if any.
11. Net proceeds to the Corporation.
12. Agent's commission (to be paid in the form of a
discount from the proceeds remitted to the
Corporation upon Settlement).
13. If applicable, total amount of original issue
discount ("OID"), yield to maturity and initial
accrual period OID.
14. Any other provisions.
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B. The Corporation shall provide to the Trustee the above
Settlement information received from the Agent and shall
cause the Trustee to issue, authenticate and deliver the
Notes. The Corporation also shall provide to the Trustee
and/or Agent a copy of the applicable Pricing Supplement.
C. The Trustee will complete the preprinted 4-ply Note
packet containing the following documents in forms
approved by the Corporation, the Presenting Agent and the
Trustee:
1. Note with Agent's customer confirmation.
2. Stub I - for Trustee.
3. Stub 2 - for Agent.
4. Stub 3 - for the Corporation.
D. With respect to each trade, the Trustee will deliver
the Notes and Stub 2 thereof to the Presenting Agent at
the following applicable address: ▇▇▇▇▇▇ [
] and
▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇.▇. 10004, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. The Trustee will
keep Stub 1. The Presenting Agent will acknowledge receipt
of the Note through a broker's receipt and will keep Stub 2.
Delivery of the Note will be made only against such
acknowledgment of receipt. Upon determination that the
Note has been authorized, delivered and
B-34
69
completed as aforementioned, the Presenting Agent will
wire in immediately available funds the net proceeds of
the Note after deduction of its applicable commission
to the Corporation pursuant to standard wire instructions
given by the Corporation.
E. The Presenting Agent will deliver the Note (with
confirmations), as well as a copy of the Prospectus and
any applicable Prospectus Supplement or Supplements
received from the Trustee to the purchaser against payment
in immediately available funds.
F. The Trustee will send Stub 3 to the Corporation.
Settlement Pro- For offers accepted by the Corporation, Settlement
cedures Timetable: Procedures "A" through "G" set forth above shall be
completed on or before the respective times set forth
below:
Settlement
Procedure Time
--------- ----
A-B 3:00 p.m. on Business
Day prior to settlement
C-D 2:15 p.m. on day of
settlement
E 3:00 p.m. on day of
settlement
F 5:00 p.m. on day of
settlement
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70
Failure to Settle: In the event that a purchaser of a Note from the
Corporation shall either fail to accept delivery of or
make payment for a Note on the date fixed for settlement,
the Presenting Agent will forthwith notify the Trustee and
the Corporation by telephone, confirmed in writing, and
return the Note to the Trustee.
The Trustee, upon receipt of the Note from the Agent, will
immediately advise the Corporation and the Corporation
will promptly arrange to credit the account of the
Presenting Agent in an amount of immediately available
funds equal to the amount previously paid by such Agent in
settlement for the Note. Such credits will be made on the
settlement date if possible, and in any event not later
than the Business Day following the settlement date;
provided that the Corporation has received notice on the
same day. If such failure shall have occurred for any
reason other than failure by such Agent to perform its
obligations hereunder or under the Agency Agreement, the
Corporation will reimburse such Agent on an equitable
basis for its loss of the use of funds during the period
when the funds were credited to the account of the
Corporation. Immediately upon receipt of the Note in
respect of which the failure occurred, the Trustee will
cancel and destroy the Note, make appropriate entries in
its records to reflect the fact that the Note was never
issued, and accordingly notify in writing the Corporation.
An Agent will not be entitled to any commission
B-36
71
with respect to any Note which the purchaser
does not accept or make payment for.
B-37
72
EXHIBIT C
TERMS AGREEMENT
AIR PRODUCTS AND CHEMICALS, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [Treasurer]
The undersigned agrees to purchase the following principal amount of
the Notes described in the Agency Agreement dated [ ], 1996 (as it may be
supplemented or amended from time to time, the "Agency Agreement") (all
capitalized terms used but not defined herein, shall have the meaning specified
in the Agency Agreement):
Aggregate Principal Amount: [$] ___________________
Currency: ___________________
Maturity Date: ___________________
Interest Rate: ___%
Interest Payment Dates: ___________________
Discount or Commission ___%
Aggregate Price to be ___% of principal amount
paid to Company
(in immediately
available funds): [$] ____________________
Settlement Date: ____________________
Other Terms: ____________________
[In the case of Notes issued in a foreign currency or currency unit,
unless otherwise specified below, settlement and payments of principal and
interest will be in U.S. dollars based on the highest bid quotation in The
City of New York received by the Exchange Rate Agent at approximately
11:00 a.m., New York City time, on the second Business Day preceding the
applicable payment date from three recognized foreign exchange dealers (one of
which may be the Exchange Rate Agent (as defined in the Indenture) for the
purchase by the quoting dealer of the Specified Currency payable to all holders
of Notes denominated in such Specified Currency electing to receive U.S. dollar
payments and at which the applicable dealer commits to execute a contract. If
such bid quotations are not available, payments will be made in the Specified
Currency.)]
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73
Our obligations to purchase Notes hereunder is subject to the
continued accuracy of your representations and warranties contained in
the Agency Agreement and to your performance and observance of all applicable
covenants and agreements contained therein, including, without limitation,
your obligations pursuant to Section 11 thereof.
[Our obligation hereunder is subject to the further conditions that
we shall receive (a) the opinion required to be delivered pursuant to Sections
7(f) of the Agency Agreement, (b) the certificate required to be delivered
pursuant to Section 7(f) of the Agency Agreement, in each case dated as of the
above Settlement Date and [Insert other conditions as appropriate].]
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Settlement Date, you will not
offer or sell, or enter into any agreement to sell, any debt securities of the
Corporation, other than borrowings under your revolving credit agreements and
lines of credit, the private placement of securities and issuances of your
commercial paper.
We may terminate this Agreement, immediately upon notice to you, at
any time prior to the Settlement Date, if any of the conditions
specified in Section 7(b) of the Agency Agreement are not satisfied. In the
event of such termination, no party shall have any liability to the other party
hereto, except as provided in Sections 5, 11 and 16 of the Agency Agreement.
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74
This Agreement shall be governed by and construed in accordance with
the laws of New York.
▇▇▇▇▇▇ BROTHERS INC.
By
--------------------
(Title)
▇▇▇▇▇▇▇, SACHS & CO.
By
--------------------
(Title)
Accepted:
AIR PRODUCTS AND CHEMICALS, INC.
By
------------------------
(Title)
C-3
75
EXHIBIT D
FOREIGN CURRENCY AMENDMENT NO. ______________
TO AGENCY AGREEMENT, DATED [ ], [ ]
AS AMENDED
[Insert Title of Foreign Currency]
The undersigned hereby agree that for the purposes of the issue and
sale of Notes denominated in [title of currency or currency unit] (the
"Applicable Foreign Currency") pursuant to the Agency Agreement, dated [ ],
1996, as it may be amended (the "Agency Agreement"), the following additions
and modifications shall be made to the Agency Agreement. The additions and
modifications adopted hereby shall be of the same effect for the sale under the
Agency Agreement of all Notes denominated in the Applicable Foreign Currency,
whether offered on an agency or principal basis, but shall be of no effect with
respect to Notes denominated in any currency or currency unit other than the
Applicable Foreign Currency.
Except as otherwise expressly provided herein, all terms used
herein which are defined in the Agency Agreement shall have the same meanings
as in the Agency Agreement. The terms Agent or Agents, as used in the Agency
Agreement, shall be deemed to refer only to the undersigned Agents for purposes
of this Amendment.
[Insert appropriate additions and modifications to the Agency
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc.]
,
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AIR PRODUCTS AND CHEMICALS, INC.
By
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Name:
Title:
D-1
76
▇▇▇▇▇▇ BROTHERS INC.
By
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Name:
(Title)
▇▇▇▇▇▇▇, SACHS & CO.
By
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Name:
Title:
D-2