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EXHIBIT 1
U.S. $ 1/
Air Products and Chemicals, Inc.
Medium-Term Notes, Series
AGENCY AGREEMENT
, 199
[Agents]
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 $ 1/ aggregate principal amount
of its Medium-Term Notes, Series , 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 ,
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 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.
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1/ Or its equivalent in foreign currencies or currency
units.
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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. 333-[ ]) (the "Registration Statement"), including a basic
prospectus, which has become effective under the Securities Act, for
the registration under the Securities Act of $ aggregate principal
amount of debt securities (the "Securities"), including the Notes. The
Registration Statement meets the requirements set forth in Rule
415(a)(1) under the Securities Act and complies in all other material
respects with said Rule. The Corporation has included in the
Registration Statement a supplement to the form of prospectus included
in the Registration Statement relating to the Notes and the plan of
distribution thereof (as amended or supplemented from time to time, the
"Prospectus Supplement"). In connection with the sale of the Notes, the
Corporation proposes to file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Securities Act further
supplements to the Prospectus Supplement specifying the interest rates,
maturity dates, redemption provisions and other similar terms of the
Notes sold pursuant hereto or the offering thereof. "Basic Prospectus"
shall mean the form of basic prospectus relating to the Securities
contained in the Registration Statement. The term "Prospectus" means
the Basic Prospectus as supplemented by the 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
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Registration Statement, the Basic Prospectus, the Prospectus Supplement
or the Prospectus includes the filing of any document under the
Exchange Act after the date hereof or the issue date of the Prospectus
Supplement or the Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) Accuracy of Registration Statement. The Registration
Statement, as amended, as of each Representation Date, complies in all
material respects with the provisions of the Securities Act and the
Rules and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; and the
Prospectus, as supplemented as of any such time, complies in all
material respects with the provisions of the Securities Act and the
Rules and does not contain any untrue statement of a material fact and
does not omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that the Prospectus as supplemented at the Closing Date may
not include the information contemplated by Section l(a) to be
contained in pricing supplements thereto; provided, further, however,
that none of the representations and warranties contained in this
Section 1(b) shall apply to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee or (ii) statements in, or
omissions from, the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto made in reliance upon and in
conformity with information furnished in writing to the Corporation by
or on behalf of 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
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supplemented as of such Representation Date, and except as set forth
therein, there has not been any material adverse development or change
in the condition, financial or other, or the results of operations of
the Corporation and its consolidated subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business.
(e) Litigation. Except as set forth in the Registration
Statement and the Prospectus, as amended or supplemented as of such
Representation Date, neither the Corporation nor any of its
subsidiaries has any litigation or governmental proceeding pending of a
character which will result in a judgment, decree or order having a
material adverse effect on the condition, financial or other, or the
results of operations of the Corporation and its consolidated
subsidiaries, taken as a whole.
(f) Valid Incorporation; Subsidiaries. The Corporation and
each subsidiary of the Corporation has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
jurisdiction in which it was incorporated, has the corporate power to
own or hold under lease the property it purports to own or hold under
lease and to carry on the business in which it is engaged, and is duly
licensed and duly qualified and is in good standing as a foreign
corporation in each jurisdiction wherein the character of the property
owned or held under lease by it, or the nature of the business
transacted by it, makes such licensing or qualification necessary; and
all the outstanding shares of the capital stock of the subsidiaries of
the Corporation are owned directly, or indirectly through wholly owned
subsidiaries, by the 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
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of the Board of Directors of the Corporation will be required for the
issuance, sale and delivery of the Notes as contemplated herein; (ii)
neither such issuance, sale or delivery of the Notes nor the
consummation of any other of the transactions herein contemplated will
result in a breach by the Corporation of any terms of, or constitute a
default under, any other agreement or undertaking of the Corporation;
and (iii) no authorization, consent or approval of, or filing or
registration with, or exemption by, any government or public body or
authority of the United States or of any State or any department or
subdivision thereof, other than such as may be required under the
securities or blue sky laws of any jurisdiction and other than
registration of the Notes under the Securities Act and qualification
of the Indenture under the Trust Indenture Act, is required for the
validity of the Notes or for the valid offering, issuance, sale and
delivery of the Notes by the Corporation pursuant to this Agreement or
for the execution and delivery by the Corporation of this Agreement and
the Indenture.
(h) No Stop Order. The Commission has not issued any order
preventing or suspending the use of the Prospectus as supplemented as
of such Representation Date.
(i) Financial Statements. The financial statements included in
the Registration Statement and the Prospectus, as amended or
supplemented as of such Representation Date, present fairly the
financial condition and results of operations of the entities 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
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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.
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
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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 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
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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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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
(viii) the documents required to be delivered by Section 6
hereof shall be delivered at the offices of Cravath, Swaine & Xxxxx,
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 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 to the extent as
appropriate 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, the
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portion of the expenses described in Section 5 to be paid or reimbursed
to the Corporation by the Purchaser 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 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 incorpo-
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rated 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 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
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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 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
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(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 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
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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 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) except to the extent paid or reimbursed to the
Corporation by a Purchaser pursuant to a Terms Agreement (which payment or
reimbursement shall be in an amount proportional to the principal amount of
Notes sold under such Terms Agreement to $ ), 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
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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.
(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:
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(i) the Corporation has been duly incorporated and is a
validly existing corporation in good standing under the laws of the
State of Delaware, and has the corporate power to own or hold under
lease the property it purports to own or hold under lease and to carry
on the business in which it is engaged;
(ii) the form of the Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the
Registration Statement and the Prospectus;
(iii) the issuance, sale and delivery of the Notes by the
Corporation pursuant to this Agreement have been duly and validly
authorized by all necessary corporate action; and no authorization,
consent or approval of, or filing or registration with, or exemption
by, any 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
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availability of equitable remedies may be limited by equitable
principles of general applicability), entitled to the benefits of the
Indenture;
(vi) this Agreement has been duly authorized, executed and
delivered by the Corporation, and the performance of this Agreement and
the consummation of the transactions herein contemplated will not
result in a breach of any of the terms or provisions of, or constitute
a default under, the Restated Certificate of Incorporation or By-laws
of the Corporation or, to the knowledge 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
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aforesaid) the Registration Statement (or any post-effective amendment
thereof) at the time it became effective contained any untrue statement
of a material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that (except as aforesaid) the Prospectus (as amended or
supplemented, if so amended or supplemented) contains any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading as of the Closing Date.
(f) The Corporation shall have furnished to the Agents on the
Closing Date a certificate of the Corporation, dated the Closing Date, signed on
its behalf by the President, the Vice President-Finance or the Treasurer,
stating that:
(i) The representations, warranties and agreements of the
Corporation in section 1 hereof are true and correct in all material
respects as of the date of such certificate with the same effect as if
made on such date; and the Corporation has not received any notice that
the conditions set forth in Section 5(a) hereof will not be satisfied
as of the Closing Date or any other Representation Date; and
(ii) The person executing such certificate has examined the
Registration Statement and the Prospectus and, in such person's
opinion, (A) the Registration Statement at the date thereof, or as of
the most recent amendment thereto, if any, did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (B) the Prospectus as supplemented at the date of such
certificate does not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (other than
the information to be provided in pricing supplements thereto as
contemplated by Section l(a) hereof), and (C) since the effective date
of the Registration Statement (or the most recent amendment thereto, if
any) there has not occurred any event required to be set forth in an
amendment to the Registration Statement which has not been so set
forth.
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(g) The Corporation shall have furnished to the Agents on the
Closing Date a letter of Xxxxxx Xxxxxxxx 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 hereto fore 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
"nation ally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Securities
Act, or any public announcement by any such organization that the rating
accorded any of the Corporation's debt securities have been placed under
surveillance or review with possible negative implications, if the effect
thereof in the judgment of such Agent or purchaser makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase Notes or the
purchase of Notes from the Corporation, as the case may be.
(i) Prior to the Closing Date, the Corporation shall have
furnished to the Agents such further information, certificates and documents as
the Agents or counsel to the Agents may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only
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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.
(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
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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 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.
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(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 Xxxxxx Xxxxxxxx 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.
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 there for, 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
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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
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
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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 Agents with a letter to the effect that the Agents
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 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 Xxxxxx Xxxxxxxx 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
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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, Xxxxxx Xxxxxxxx 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 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
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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 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
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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 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
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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 indemnifying 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.
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 shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Notes (before deducting expenses) received by the Corporation
bear to the total commissions received by such Agent with respect to such
offering (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
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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 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
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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 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
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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
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: Notices to the Corporation shall be directed to
it as follows: Air Products and Chemicals, Inc., 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000, 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 in counterparts and the executed counterparts shall
together constitute a single instrument.
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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:
[AGENTS]
by _____________________________
Name:
Title:
