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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20545
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 15 OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) JUNE 15, 1995
E. I. DU PONT DE NEMOURS AND COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1-815 51-0014090
(STATE OR OTHER JURISDICTION (COMMISSION (I.R.S. EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
1007 MARKET STREET
WILMINGTON, DELAWARE 19898
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (302) 774-1000
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
In connection with the Prospectus Supplement Dated June 15, 1995 to the
Prospectus dated May 25, 1994, of E. I. du Pont de Nemours and Company,
regarding Debt Securities which may be offered on a delayed or continuous
basis under a Registration Statement on Form S-3 (No. 33-53327), we hereby
file the following documents:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- --------------- -----------------------------------------------------------------------------------------
<S> <C>
1(a) Form of Agency Agreement
1(b) Form of letter of appointment of additional agents
4 Forms of Notes
</TABLE>
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
E. I. DU PONT DE NEMOURS AND COMPANY
(Registrant)
JOHN C. SARGENT
------------------------------------
JOHN C. SARGENT
VICE PRESIDENT AND TREASURER
June 15, 1995
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------
<S> <C>
1(a) Form of Agency Agreement
1(b) Form of letter of appointment of additional agents
4 Forms of Notes
</TABLE>
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U.S. $3,442,560,000
E. I. DU PONT DE NEMOURS AND COMPANY
Medium-Term Notes, Series G
Due 9 Months or More From Date of Issue
AGENCY AGREEMENT
June 15, 1995
CS First Boston Corporation
Park Avenue Plaza
55 East 52nd Street
New York, New York 10055
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center
New York, New York 10281-1323
J. P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs:
1. Introduction. E. I. du Pont de Nemours and Company, a
Delaware corporation (the "Issuer"), confirms its agreement with each of you
(individually, an "Agent" and collectively, the "Agents") with respect to the
issue and sale from time to time by the Issuer for aggregate proceeds of up to
U.S. $3,442,560,000 (or the equivalent thereof in one or more foreign
currencies or currency units) aggregate principal amount of its medium-term
notes registered under the registration statement referred to in Section 2(a)
as evidenced by either (i) a medium-term note master note (the
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2
"Master Note") or (ii) global or certificated medium-term notes (the "Note
Certificates") in the forms filed by the Company with the Commission (as
defined in Section 2(a) (any such medium-term notes, being hereinafter referred
to as the "Securities"), subject to reduction as a result of certain other
Registered Securities (as defined in Section 2(a)), other than the Securities.
The Securities will be issued under an indenture dated as of June 1, 1992 (the
"Indenture"), between the Issuer and Chemical Bank, as trustee (the "Trustee").
The Securities shall have the prices, maturity ranges, annual
interest rates, redemption provisions and other terms set forth in the
Prospectus referred to in Section 2(a) as it may be supplemented from time to
time. The Securities will be issued, and the terms thereof established, from
time to time by the Issuer in accordance with the Indenture and the Procedures
(as defined in Section 3(d) hereof).
2. Representations and Warranties of the Issuer. The Issuer
represents and warrants to, and agrees with, each Agent as follows:
(a) A registration statement (No. 33-53327), including a
prospectus, relating to debt securities of the issuer, including the
Securities ("Registered Securities"), has been filed with the
Securities and Exchange Commission ("Commission") and has become
effective. Such registration statement, as amended as of the Closing
Date (as defined in Section 3(e) hereof), is hereinafter referred to
as the "Registration Statement", and the prospectus included in such
Registration Statement, as supplemented as of the Closing Date,
including all material incorporated by reference therein, is
hereinafter referred to as the "Prospectus". Any reference in this
Agreement to amending or supplementing the Prospectus shall be deemed
to include the filing of materials incorporated by reference in the
Prospectus after the Closing Date and any reference in this Agreement
to any amendment or supplement to the Prospectus shall be deemed to
include any such materials incorporated by reference in the Prospectus
after the Closing Date.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements
of the Securities Act of 1933 ("Act"), the Trust Indenture Act of 1939
("Trust
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3
Indenture Act") and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, and on the Closing Date, the Registration Statement and
the Prospectus, and at each of the times of acceptance and of delivery
referred to in Section 6(a) hereof and at each of the times of
amendment or supplementing referred to in Section 6(b) hereof (the
Closing Date and each such time being herein sometimes referred to as
a "Representation Date"), the Registration Statement and the
Prospectus as then amended or supplemented, will conform in all
respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and neither of such documents will include
any untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based
upon written information furnished to the Issuer by any Agent
specifically for use therein.
3. Appointment as Agent: Solicitations as Agent. (a)
Subject to the terms and conditions stated herein, the Issuer hereby appoints
each of the Agents as an agent of the Issuer for the purpose of soliciting or
receiving offers to purchase the Securities from the Issuer by others. The
Issuer may from time to time offer Securities for sale otherwise than through
an Agent; provided, however, that so long as this Agreement shall be in effect
the Issuer shall not solicit offers to purchase Securities through any agent
without amending this Agreement to appoint such agent an additional Agent
hereunder on the same terms and conditions as provided herein for the Agents
and without giving the Agents prior notice of such appointment. The Issuer may
accept offers to purchase Notes through an agent other than an Agent, provided
that (i) the Issuer shall not have solicited such offers, (ii) the Issuer and
such agent shall have executed an agreement with respect to such purchases
having terms and conditions (including, without limitation, commission rates)
with respect to such purchases substantially the same as the terms and
conditions that would apply to such purchases under this Agreement if such
agent was an Agent (which may be accomplished by incorporating by reference in
such agreement the terms and conditions of this Agreement) and (iii) the
Company shall provide the Agents
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4
with a copy of such agreement promptly following the execution thereof.
(b) On the basis of the representations and warranties
contained herein, but subject to the terms and conditions herein set forth,
each Agent agrees, as agent of the Issuer, to use its best efforts when
requested by the Issuer to solicit offers to purchase the Securities upon the
terms and conditions set forth in the Prospectus, as from time to time amended
or supplemented.
Upon receipt of notice from the Issuer as contemplated by
Section 4(b) hereof, each Agent shall suspend its solicitations of purchases of
Securities until such time as the Issuer shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as the
case may be, contemplated by Section 4(b) and shall have advised such Agent
that such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to
suspend solicitation of offers to purchase the Securities commencing at any
time for any period of time or permanently. Upon receipt of notice from the
Issuer, the Agents will as promptly as practicable, but in no event later than
one business day following such notice, suspend solicitation of offers to
purchase Securities from the Issuer until such time as the Issuer 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 a Sunday and which in New York City is not a day on which banking
institutions are authorized or required by law or regulation to close.
The Agents are authorized to solicit offers to purchase
Securities denominated in U.S. dollars only in a minimum aggregate amount of
$100,000 (or the equivalent thereof if any Securities are denominated in
foreign currencies or currency units) and only in fully registered form in
denominations of $100,000 and integral multiples of $1,000 in excess thereof.
The authorized denominations of Securities not denominated in U.S. dollars will
be determined by the Issuer at the time of sale. Each Agent shall communicate
to the Issuer, orally or in writing, each reasonable offer to purchase
Securities received by it as Agent, subject to the following. The Issuer shall
have the sole right to accept offers to purchase the Securities and may reject
any such offer, in whole or in part. Each Agent shall have the right, in its
discretion reasonably exer-
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5
cised, without notice to the Issuer, to reject any offer to purchase Securities
received by it, in whole or in part, and any such rejection shall not be deemed
a breach of its agreement contained herein.
The Issuer hereby agrees not to accept any offers for, or
otherwise to enter into any agreement providing for, the purchase on any day of
Indexed Securities or Dual Currency Securities having the same interest rate or
interest rate formula, if any, stated maturity, date of issue and other terms
unless the aggregate Face Amount of such Indexed Securities is equal to or
greater than U.S. $2,500,000 (or, in the case of Indexed Securities with a
Denominated Currency other than U.S. dollars, or, in the case of Dual Currency
Securities with a Face Amount Currency other than U.S. dollars, the equivalent
thereof in the Denominated Currency based upon the noon buying rate on the date
the Issuer agrees to issue such Indexed Securities or Dual Currency Securities
in New York City for cable transfers in such Denominated Currency or the Face
Amount Currency, as the case may be, as certified for customs purposes by the
Federal Reserve Bank of New York). Each Agent, in soliciting Indexed
Securities or Dual Currency Securities, will undertake to market such
Securities subject to the minimum aggregate amount described in the preceding
sentence. In addition, each of the Agents and the Issuer hereby agrees not to
market any Indexed Securities or Dual Currency Securities as being or having
the characteristics of a futures contract or a commodity option, except to the
extent necessary to describe the operation of the instrument or to comply with
the applicable disclosure requirements. For purposes of this Section 3(b), the
term Indexed Securities shall mean all Securities the amount of principal of
which payable at maturity is to be determined by reference to a specified
currency, currency unit, commodity or financial or non-financial index or
indices. For purposes of this Section 3(b), the term Dual Currency Securities
shall mean all Securities as to which the Issuer has the option of making each
scheduled payment of principal and interest due on such Securities in either
the Face Amount Currency specified in the applicable Pricing Supplement or the
Optional Payment Currency specified therein.
In addition, as a condition precedent to any issuance of
Indexed Securities or Dual Currency Securities, each Agent which has acted as
the Presenting Agent with respect to such Indexed Securities or Dual Currency
Securities agrees it will deliver to the Issuer on the date the Issuer proposes
to agree to the sale of such Indexed Securities or
<PAGE> 6
6
Dual Currency Securities a letter, in form reasonably satisfactory to the
Issuer, stating that the Commodity-Independent Yield of such Indexed Securities
or Dual Currency Securities equals at least 50%, but not more than 150%, of the
estimated annual yield at the time of issuance for a comparable nonhybrid debt
instrument issued by the Issuer. For purposes of this Section 3(b), the term
"Commodity-Independent Yield" shall have the meaning assigned to that term in
the Statutory Interpretation Concerning Certain Hybrid Instruments issued by
the U.S. Commodity Futures Trading Commission on April 11, 1990.
Each Agent agrees that it will serve as the Option Value
Calculation Agent for any Dual Currency Securities for which it agrees to
solicit offers or that it agrees to purchase.
No Security which the Issuer has agreed to sell pursuant to
this Agreement shall be deemed to have been purchased and paid for, or sold, by
the Issuer until such Security shall have been delivered to the purchaser
thereof against payment by such purchaser.
(c) At the time of delivery of, and payment for, any
Securities sold by the Issuer as a result of a solicitation made by, or offer
to purchase received by, an Agent, the Issuer agrees to pay such Agent a
commission in accordance with the schedule set forth in Exhibit A hereto.
(d) Administrative procedures respecting the sale of
Securities (the "Procedures") shall be agreed upon from time to time by the
Agents and the Issuer. The initial Procedures shall be set forth in the order
for authentication and delivery provided by the Issuer to the Trustee pursuant
to the Indenture, a copy of which shall be provided by the Issuer to the Agents
at the Closing, which procedures shall remain in effect until changed by
agreement among the Issuer and the Agents. Each Agent and the Issuer agree to
perform the respective duties and obligations specifically provided to be
performed by each of them herein and in the Procedures. The Issuer will
furnish to the Trustee a copy of the Procedures as from time to time in effect.
(e) The documents required to be delivered by Section 5
hereof shall be delivered at the office of Cravath, Swaine & Moore, 825 Eighth
Avenue, New York, New York 10019, not later than 10:00 a.m., New York City
time, on the date of this Agreement or at such later time as may be mutually
agreed by the Issuer and the Agents, which in no
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7
event shall be later than the time at which the Agents commence solicitation of
purchases of Securities hereunder, such time and date being herein called the
"Closing Date".
4. Certain Agreements of the Issuer. The Issuer agrees with
the Agents that it will furnish to Cravath, Swaine & Moore, counsel for the
Agents, one signed copy of the Registration Statement, including all exhibits,
in the form it became effective and of all amendments thereto but only if such
documents have not, prior to the date hereof, been received by Cravath, Swaine
& Moore and that, in connection with each offering of Securities:
(a) The Issuer will advise each Agent promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Agents a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Issuer
will also advise each Agent of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part
thereof and will use its reasonable efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if
issued.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Issuer will
promptly notify each Agent to suspend solicitation of purchases of the
Securities; and, if the Issuer shall decide to amend or supplement the
Registration Statement or the Prospectus, it will promptly advise each
Agent by telephone (with confirmation in writing) and will promptly
prepare and file with the Commission an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. Notwithstanding the foregoing, if, at the
time of any notification to suspend solicitations, any Agent shall own
any of the Securities with the intention of reselling them, or the
Issuer has accepted an offer to purchase Securities but the related
settlement
<PAGE> 8
8
has not occurred, the Issuer, subject to the provisions of subsection
(a) of this Section, will promptly prepare and file with the
Commission an amendment or supplement which will correct such
statement or omission or an amendment which will effect such
compliance.
(c) The Issuer, during the period when a prospectus relating
to the Securities is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"). In addition, during such
period referred to in the immediately preceding sentence, concurrently
with the time at which the Issuer makes any announcement to the
general public concerning earnings or concerning any other event which
is required to be described, or which the Issuer proposes to describe,
in a document filed pursuant to the Exchange Act, the Issuer will
furnish the information contained in such announcement to each Agent,
confirmed in writing. The Issuer will immediately notify each Agent of
any downgrading in the rating of the Securities or any other debt
securities of the Issuer by Moody's Investor Service, Inc. or Standard
& Poor's Corporation as soon as the Issuer learns of such downgrading.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of the Agents an
earnings statement or statements of the Issuer and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(e) The Issuer will furnish to each Agent one copy of the
Registration Statement, including all exhibits and copies in such
quantities as are reasonably requested of any related preliminary
prospectus, the Prospectus and all amendments and supplements to such
documents, in each case as soon as available.
(f) The Issuer will arrange for the qualification of the
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Issuer and the
Agents shall mutually agree and will continue such qualifications in
effect so long as required for the distribution.
(g) So long as any Securities are outstanding,
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9
the Issuer will furnish to the Agents, (i) as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year, and (ii) as soon as available, a copy of
each report or definitive proxy statement of the Issuer filed with the
Commission under the Exchange Act or mailed to stockholders.
(h) The Issuer will pay all expenses incident to the
performance of its obligations under this Agreement and will reimburse
each Agent for any expenses (including fees and disbursements of
counsel) incurred by it in connection with qualification of the
Securities for sale and determination of their eligibility for
investment under the laws of such jurisdictions as the Issuer and such
Agent shall mutually agree and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Securities, for expenses incurred in distributing the
Prospectus and all supplements thereto and any preliminary
prospectuses to each Agent and for the reasonable fees and
disbursements of counsel to the Agents.
5. Conditions of Obligations. The obligation of each Agent,
as agent of the Issuer, under this Agreement at any time to solicit offers to
purchase the Securities is subject to the accuracy, on the date hereof, on each
Representation Date and on the date of each such solicitation, of the
representations and warranties of the Issuer herein, to the accuracy, on each
such date, of the statements of the Issuer's officers made pursuant to the
provisions hereof, to the performance, on or prior to each such date, by the
Issuer of its obligations hereunder, and to each of the following additional
conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Issuer or any Agent, shall be contemplated by the
Commission.
(b) Neither the Registration Statement nor the Prospectus, as
amended or supplemented as of any Representation Date or date of such
solicitation, as the case may be, shall contain any untrue statement
of fact which is material or omit to state a fact which is material
and is required to be stated therein or is necessary to make the
statements therein not mislead-
<PAGE> 10
10
ing.
(c) There shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Issuer or its
subsidiaries which, in the reasonable judgment of such Agent,
materially impairs the investment quality of the Securities; (ii) any
downgrading in the rating of the Securities or any other debt
securities of the Issuer by Moody's Investors Services, Inc. or
Standard & Poor's Corporation; (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Issuer on any exchange
or in the over-the-counter market, if, in the reasonable judgment of
such Agent, the effect of any such suspension makes it impractical or
inadvisable to proceed with solicitations of purchases of, or sales,
of Securities; (iv) any banking moratorium declared by Federal or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency if, in the reasonable judgment of such Agent,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
solicitations of purchases of, or sales, of Securities.
(d) At the Closing Date, the Agents shall have received an
opinion, dated the Closing Date, of the General Counsel or any
Assistant General Counsel of the Issuer, to the effect that:
(i) the Issuer has been duly incorporated and is an
existing corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority to own
its properties and conduct its business as described in the
Prospectus and is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which the ownership or leasing of its properties or in which
the conduct of its business requires such qualification except
in such jurisdictions in which the failure to so qualify would
not have a material adverse effect on the business or
properties of the Issuer;
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11
(ii) the Indenture has been duly authorized, executed
and delivered by the Issuer and has been duly qualified under
the Trust Indenture Act;
(iii) the Note Certificates and the Securities have
been duly authorized and (A) the Indenture constitutes, and
(B) when any Note Certificate has been executed, authenticated
and issued and any security has been issued and delivered
against payment therefor in accordance with the Indenture and
this Agreement, such Note Certificate and Security will
constitute valid and legally binding obligation of the Issuer,
enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws relating to or affecting creditors' rights and to
general equity principles; and the Note Certificates and
Securities conform to the description thereof contained in the
Prospectus (subject to insertion or incorporation by reference
into the Note Certificates and Securities of the maturity
date, interest rate and other terms thereof which will be
described in supplements to the Prospectus);
(iv) the Master Note and the Securities to be
evidenced thereby have been duly authorized and (A) the
Indenture constitutes, and (B) when the Master Note has been
executed, authenticated and deposited with, or on behalf of,
the Depositary (as defined in the Prospectus Supplement) and
(c) registered in the name of The Depositary or its nominee,
(in each case in accordance with the Indenture and this
Agreement) and any Security has been issued and delivered
against payment in accordance with the Indenture and this
Agreement, such Master Note and Securities will constitute
valid and legally binding obligations of the Issuer,
enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws relating to or affecting creditors' rights and to
general equity principles; and the Master Note and Securities
conform to the description thereof contained in the Prospectus
(subject to insertion or incorporation by reference into the
Master Note and the Securities of the Maturity date, interest
rate and other terms thereof which will be described in
supplements to the Prospectus);
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12
(v) the Registration Statement has become effective
under the Act, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act, and the
Registration Statement, as of its effective date and the
Prospectus, as of the Closing Date, and any amendment or
supplement thereto, as of its date, appear on their face to be
appropriately responsive in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules
and Regulations; such counsel has no reason to believe that
the Registration Statement, as of its effective date, or the
Prospectus, as of the Closing Date, or any such amendment or
supplement, as of its date, 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 contains any untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
the Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly
present the information required to be shown; and such counsel
do not know of any legal or governmental proceedings required
to be described in the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statement or the Prospectus;
(vi) no consent, approval or authorization from any
regulatory board, agency or instrumentality within the United
States having jurisdiction over the Issuer (other than
registration under the Act and qualification under state
securities or Blue Sky laws), is necessary for the
consummation
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13
of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Securities by the
Issuer;
(vii) the issuance of the Master Note and the
issuance, sale and delivery of the Securities in accordance
with the Indenture and the sale thereof in accordance with the
terms of this Agreement, and compliance with the terms and
provisions thereof, do not and will not result in any
violation of any of the terms or provisions of the Issuer's
Certificate of Incorporation or Bylaws, or of any indenture,
mortgage or other agreement known to such counsel by which the
Issuer or any of its properties is bound or any statute, rule,
regulation, judgment, order or decree known to such counsel to
be applicable to the Issuer of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Issuer; and
(viii) this Agreement has been duly authorized,
executed and delivered by the Issuer and is the valid and
binding agreement of the Issuer.
(e) At the Closing Date, the Agents shall also have received
an opinion dated the Closing Date, of David S. Poston, Esq., Senior
Counsel of the Issuer, confirming as his opinion the statements set
forth in the Prospectus under the caption "United States Taxation".
(f) At the Closing Date, the Agents shall have received a
certificate, dated the Closing Date, of any of the Chairman of the
Board, any Vice Chairman, any Senior Vice President, the Vice
President and Treasurer, the Vice President and Controller and any
Assistant Treasurer of the Issuer in which such officer, to the best
of his or her knowledge after reasonable investigation, shall state
that (i) the representations and warranties of the Issuer in this
Agreement are true and correct; (ii) the Issuer has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date; (iii) no stop
order suspending the effectiveness of the Registration Statement or of
any part thereof has been issued and no proceedings for that purpose
have been
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14
instituted or are contemplated by the Commission; and (iv) subsequent
to the date of the most recent financial statements in the Prospectus,
there has been no material adverse change in the financial position or
results of operations of the Issuer and its subsidiaries, except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(g) At the Closing Date, the Agents shall have received a
letter, dated the Closing Date, of Price Waterhouse in form and
substance satisfactory to the Agents, with respect to the financial
statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus. All financial statements and schedules included in
material incorporated by reference into the Prospectus shall be deemed
included in the Prospectus for purposes of this subsection.
(h) The Agents shall have received from Cravath, Swaine &
Moore, counsel for the Agents, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Issuer, the
validity of the Securities, the Registration Statement, the Prospectus
and other related matters as they may require, and the Issuer shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(i) The Issuer will furnish the Agents with such conformed
copies of such opinions, certificates, letters and documents as they
reasonably request.
6. Additional Covenants of the Issuer. The Issuer agrees
that:
(a) Each acceptance by the Issuer of an offer for the
purchase of Securities shall be deemed to be an affirmation that its
representations and warranties contained in this Agreement are true
and correct at the time of such acceptance and a covenant that such
representations and warranties will be true and correct at the time of
delivery to the purchaser of the Securities relating to such
acceptance as though made at and as of each such time, it being
understood that such representations and warranties shall relate to
the Registration Statement and the Prospectus as amended or
supplemented at each such time. Each such acceptance by the Issuer of
an offer for the purchase of Securities shall be
<PAGE> 15
15
deemed to constitute an additional representation, warranty and
agreement by the Issuer that, as of the settlement date for the sale
of such Securities, after giving effect to the issuance of such
Securities, of any other Securities to be issued on or prior to such
settlement date and of any other Registered Securities to be issued
and sold by the Issuer on or prior to such settlement date, the
aggregate amount of Registered Securities (including any Securities)
which have been issued and sold by the Issuer will not exceed the
amount of Registered Securities registered pursuant to the
Registration Statement. The Issuer will inform any Agent promptly
upon such Agent's request of the aggregate amount of Securities
registered under the Registration Statement which remain unsold.
(b) (i) Each time that the Registration Statement or the
Prospectus shall be amended or supplemented pursuant to a filing by
the Issuer of an Issuer's (A) Quarterly Report on Form 10-Q for such
period, (B) Annual Report on Form 10-K for such period or (c) Current
Report on Form 8-K, the Issuer shall, concurrently with such amendment
or supplement, furnish the Agents with a certificate, dated the date
of delivery thereof, of any of the Chairman of the Board, any Vice
Chairman, any Senior Vice President, the Vice President and Treasurer,
the Vice President and Controller and any assistant Treasurer of the
Issuer in form satisfactory to the Agents, to the effect that the
statements contained in the certificate covering the matters set forth
in Section 5(f) hereof which was last furnished to the Agents are true
and correct at the time of such amendment or supplement 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 or
supplemented at such time and except that the statements contained in
the certificate covering the matters set forth in clause (ii) of
Section 5(e) shall be deemed to relate to the time of delivery of such
certificate) or, in lieu of such certificate, a certificate of the
same tenor as the certificate referred to in Section 5(e), modified as
necessary to relate to the Registration Statement and the Prospectus
as amended or supplemented at the time of delivery of such certificate
and, in the case of the matters set forth in clause (ii) of Section
5(e), to the time of delivery of such certificate; and (ii) in
addition, each time that the Registration Statement or the Prospectus
shall be amended or supplemented (other
<PAGE> 16
16
than by an amendment or supplement relating solely to (A) any offering
of Securities providing solely for the specification of a change in
the maturity dates, interest rates, issuance prices or other similar
terms of any Securities or (B) any offering of Registered Securities
other than the Securities), the Issuer shall, upon the request of any
Agent, concurrently with such amendment or supplement furnish the
Agents with a certificate to the same effect as the certificate
referred to in the preceding clause (i).
(c) At each Representation Date referred to in Section
6(b)(i), the Issuer shall, and at each Representation Date referred to
in Section 6(b)(ii) the Issuer shall, upon the request of any Agent,
concurrently furnish the Agents with a written opinion or opinions
dated the date of such Representation Date, of counsel for the Issuer,
in form satisfactory to the Agents, to the effect set forth in Section
5(d) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended or supplemented at such
Representation Date; provided, however, that, in lieu of such opinion
or opinions, counsel may furnish the Agents with a letter or letters
to the effect that the Agents may rely on a prior opinion delivered
under Section 5(d) or this Section 6(c) to the same extent as if it
were dated the date of such letter (except that statements in such
prior opinion shall be deemed to relate to the Registration Statement
and the Prospectus as amended or supplemented at such Representation
Date).
(d) At each Representation Date referred to in Section 6(b)(i)
on which the Registration Statement or the Prospectus shall be amended
or supplemented to include additional financial information, the
Issuer shall, and at each Representation Date referred to in Section
6(b)(ii) on which the Registration Statement or the Prospectus shall
be amended or supplemented to include additional financial
information, the Issuer shall, upon the request of any Agent, cause
Price Waterhouse concurrently to furnish the Agents with a letter,
addressed jointly to the Issuer and the Agents and dated the date of
such Representation Date, in form and substance satisfactory to the
Agents, to the effect set forth in Section 5(g) hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented at such Representation Date, with such changes as may be
necessary to reflect
<PAGE> 17
17
changes in the financial statements and other information derived from
the accounting records of the Issuer; 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, Price Waterhouse 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 and procedures as shall
be agreed upon by the Agents.
(e) On each settlement date for the sale of Securities, the
Issuer shall, if requested by an Agent that solicited or received the
offer to purchase any Securities being delivered on such settlement
date, furnish such Agent with a written opinion of counsel of the
Issuer, (who may be the General Counsel, any Assistant General
Counsel, any Associate General Counsel or any Corporate or Senior
Counsel of the Issuer) dated the date of delivery thereof, in form
satisfactory to such Agent, to the effect set forth in clauses (i) and
(ii) of Section 5(d) hereof, but modified, as necessary, to relate to
the Prospectus as amended or supplemented at such settlement date and
except that such opinion shall state that the Securities being sold by
the Issuer on such settlement date, when delivered against payment
therefor as provided in the Indenture and this Agreement, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Issuer
enforceable in accordance with their terms, subject only to the
exceptions as to enforcement set forth in clause (ii) of Section 5(d)
hereof, and conform to the description thereof contained in the
Prospectus as amended or supplemented at such settlement date.
(f) The Issuer agrees that any obligation of a person who has
agreed to purchase Securities, to make payment for and take delivery
of such Securities shall be subject to (i) the accuracy, on the
related settlement date fixed pursuant to the Procedures, of the
Issuer's representation and warranty deemed to be made to the Agents
pursuant to the last sentence of subsection (a) of this Section 6,
(ii) the satisfaction, on such settlement date, of each of the
conditions set
<PAGE> 18
18
forth in Sections 5(a), (b) and (c), it being understood that under no
circumstance shall any Agent have any duty or obligation to exercise
the judgment permitted under Section 5(c) on behalf of any other such
person, and (iii) in the event of a proposal to downgrade the
Securities or any other debt securities of the Issuer by Moody's
Investors Services, Inc. or Standard & Poor's Corporation, a
reasonable determination by the Issuer, after discussion with the
Agents of such proposal, that the existence of such proposal does not
materially impair the investment quality of the Securities.
7. Indemnification and Contribution. (a) The Issuer will
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of the Act against any losses, claims, damages or
liabilities, joint or several, to which such Agent or such controlling person
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Agent and each such controlling person
for any legal or other expenses reasonably incurred by such Agent and each such
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Issuer will not be liable to such Agent in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Issuer by such Agent
specifically for use therein, unless such loss, claim, damage or liability
arises out of the offer or sale of Securities occurring after such Agent has
notified the Issuer in writing that such information should no longer be used
therein. This indemnity agreement will be in addition to any liability which
the Issuer may otherwise have.
(b) Each Agent will indemnify and hold harmless the Issuer,
each of its directors, each of its officers who have signed the Registration
Statement and each person, if
<PAGE> 19
19
any, who controls the Issuer within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Issuer or any such director,
officer or controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by such Agent
specifically for use therein, and will reimburse the Issuer and each such
director, officer or controlling person any legal or other expenses reasonably
incurred by the Issuer and each such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that such
Agent will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of the offer or sale of Securities
occurring after such Agent has notified the Issuer in writing that such
information should no longer be used therein. This indemnity agreement will be
in addition to any liability which such Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the 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 (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party and
who shall not be counsel to any other indemnified party
<PAGE> 20
20
who may have interests conflicting with those of such indemnified party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 7 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Issuer on the one hand and any Agent on the other from the offering
pursuant to this Agreement of the Securities which are the subject of the
action 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 Issuer on the one hand and any Agent on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and any Agent on the
other shall be deemed to be in the same proportions as the total net proceeds
from the offering pursuant to this Agreement of the Securities which are the
subject of the action and were sold as a result of a solicitation made by, or
offer to purchase received by, such Agent (before deducting expenses) received
by the Issuer bear to the total commissions received by such Agent from the
offering of such Securities pursuant to this Agreement. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuer or such
Agent and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is
<PAGE> 21
21
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Agent shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities which are the
subject of the action and which were distributed to the public through it
pursuant to this Agreement or upon resale of Securities purchased by it from
the Issuer exceeds the amount of any damages which such Agent has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each Agent in this subsection (d) to
contribute are several, in the same proportion which the amount of the
Securities which are the subject of the action and which were distributed to
the public through such Agent pursuant to this Agreement bears to the total
amount of such Securities distributed to the public through all the Agents
pursuant to this agreement, and not joint.
8. Status of Each Agent. In soliciting offers to purchase
the Securities from the Issuer pursuant to this Agreement and in assuming its
other obligations hereunder (other than offers to purchase pursuant to Section
11), each Agent is acting individually and not jointly and is acting solely as
agent for the Issuer and not as principal. Each Agent will make reasonable
efforts to assist the Issuer in obtaining performance by each purchaser whose
offer to purchase Securities from the Issuer has been solicited by such Agent
and accepted by the Issuer, but such Agent shall have no liability to the
Issuer in the event any such purchase is not consummated for any reason and
shall not be obligated to disclose the identity of any purchaser or potential
purchasers under any circumstances. If the Issuer shall default on its
obligations to deliver Securities to a purchaser whose offer it has accepted,
the Issuer (i) shall hold the Agents harmless against any loss, claim or damage
arising from or as a result of such default by the Issuer, and (ii) in
particular, shall pay to the Agents any commission to which they would be
entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of the Agents set forth in or made
pursuant to this Agreement will remain in full force and effect,
<PAGE> 22
22
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Agent, the Issuer or any of their respective
representatives, officers or directors or any controlling person and will
survive delivery of and payment for the Securities. If this Agreement is
terminated pursuant to Section 10 or for any other reason, the Issuer shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 4(h) and the obligations of the Issuer under Sections 4(d) and 4(g) and
the respective obligations of the Issuer and the Agents pursuant to Section 7
shall remain in effect. In addition, if any such termination shall occur either
(i) at a time when any Agent shall own any of the Securities with the intention
of reselling them or (ii) after the Issuer has accepted an offer to purchase
Securities and prior to the related settlement, the obligations of the Issuer
under the last sentence of Section 4(b), under Sections 4(a), 4(c), 4(e), 4(f),
6(a), 6(e), and 6(f) and, in the case of a termination occurring as described
in (ii) above, under Section 3(c) and under the last sentence of Section 8,
shall also remain in effect.
10. Termination. This Agreement may be terminated for any
reason at any time by the Issuer as to any Agent or, in the case of any Agent,
by such Agent insofar as this Agreement relates to such Agent, upon the giving
of one day's written notice of such termination to the other parties hereto.
Any settlement with respect to Securities placed by an Agent occurring after
termination of this Agreement shall be made in accordance with the Procedures
and each Agent agrees, if requested by the Issuer, to take the steps therein
provided to be taken by such Agent in connection with such settlement.
11. Purchases as Principal. From time to time, any Agent may
agree with the Issuer to purchase Securities from the Issuer as principal, in
which case such purchase shall be made, unless otherwise agreed by the Issuer
and such Agent, in accordance with the terms of a separate agreement (a
"Purchase Agreement") to be entered into among such Agent and the Issuer in the
form attached hereto as Exhibit B. A Purchase Agreement, to the extent set
forth therein, may incorporate by reference specified provisions of this
Agreement. In connection with any resale of the Securities purchased by the
Agents, the Agents may use a selling or dealer group that may reallow any
portion of the commission payable pursuant thereto to dealers or purchasers.
<PAGE> 23
23
13. Notices. Except as otherwise provided herein, all
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to CS First Boston Corporation shall be directed to
it at Park Avenue Plaza, New York, New York 10055, Attention: Short and
Medium-Term Financing Department; notices to Goldman, Sachs & Co. shall be
directed to it at 85 Broad Street, New York, New York 10004, Attention:
Registration Department; notices to Merrill, Lynch, Pierce, Fenner & Smith,
Incorporated shall be directed to it at World Financial Center, North Tower,
New York, New York 10281, Attention: Medium-Term Note Product Management, Pat
Hannon; notices to J. P. Morgan Securities Inc. shall be directed to it at 60
Wall Street, New York, New York 10260, Attention: Maria Sramek; Morgan Stanley
& Co. Incorporated shall be directed to it at 1221 Avenue of the Americas, New
York, New York 10020, Attention: Managing Director, Continuously Offered
Products, with a copy to Morgan Stanley & Co. Incorporated, 1251 Avenue of the
Americas, New York, New York 10020, Attention: Investment Banking Information
Center, Peter Cooper and notices to the Issuer shall be directed to it at 1007
Market Street, Wilmington, Delaware 19898, Attention: Assistant Treasurer,
Treasury Division; or in the case of any party hereto, to such other address or
person as such party shall specify to each other party by a notice given in
accordance with the provisions of this Section 12. Any such notice shall take
effect at the time of receipt.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors, the
officers and directors and controlling persons referred to in Section 7 and, to
the extent provided in Section 6(f), any person who has agreed to purchase
Securities from the Issuer, and no other person will have any right or
obligation hereunder.
14. Governing Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
This Agreement may be executed in counterparts and the executed counterparts
shall together constitute a single instrument.
<PAGE> 24
24
If the foregoing correctly sets forth our agreement, please
indicate your acceptance hereof in the space provided for that purpose below.
Very truly yours,
E. I. DU PONT DE NEMOURS AND
COMPANY,
By____________________________
Title:
CONFIRMED AND ACCEPTED, as of
the date first above written:
CS FIRST BOSTON CORPORATION,
By__________________________
Title:
____________________________
(GOLDMAN, SACHS & CO.)
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
By__________________________
Title:
J. P. MORGAN SECURITIES INC.,
By__________________________
Title:
MORGAN STANLEY & CO. INCORPORATED,
By__________________________
Title:
<PAGE> 25
EXHIBIT A
The Issuer agrees to pay each Agent a commission equal to the
following percentage of the principal amount of Notes sold to purchasers
solicited by such Agent:
<TABLE>
<CAPTION>
Commission Rate
(as a percentage of
Term principal amount)
---- --------------------
<S> <C>
9 months to less than 12 months .125
12 months to less than 18 months .15
18 months to less than 24 months .20
24 months to less than 30 months .225
30 months to less than 3 years .25
3 years to less than 4 years .30
4 years to less than 5 years .40
5 years to less than 6 years .45
6 years to less than 7 years .475
7 years to less than 8 years .50
8 years to less than 9 years .525
9 years to less than 10 years .55
10 years to less than 20 years .60
20 years to 30 years .75
Greater than 30 years to be negotiated
at time of sale
</TABLE>
<PAGE> 26
EXHIBIT B
PURCHASE AGREEMENT
, 19
E. I. du Pont de Nemours and Company
1007 Market Street
Wilmington, Delaware 19898
Attention: Vice President and Treasurer
1. The undersigned agrees to purchase the following
principal amount of the Notes described in the Agency Agreement dated June 15,
1995 (the "Agency Agreement"):
<TABLE>
<S> <C>
Specified Currency:
Principal Amount: $
Interest Rate or Formula: %
Maturity Date:
Discount or Premium: % of Principal Amount
Price to be paid to
Issuer (in immediately
available funds): $
Settlement Date:
Redemption Terms, if any:
Repayment:
Number of days during
which certain securities
of the Issuer specified
in paragraph 5 cannot be
sold:
[Additional Terms]
</TABLE>
2. 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 for purposes
of this Agreement.
3. This Agreement incorporates by reference Sections 4
(except Section 4(h) as that paragraph relates to the Issuer's responsibility
to pay for the reasonable fees and disbursements of counsel to the Agents), 6,
7, 12 and 13 of
<PAGE> 27
the Agency Agreement, the first and last sentences of Section 9 thereof and, to
the extent applicable, the Procedures. Notwithstanding the foregoing, if this
Agreement shall be terminated by the Agent because of any failure or refusal on
the part of the Issuer to comply with the terms or fulfill any of the
conditions of this Agreement, or if for any reason the Issuer shall be unable
to perform its obligations under this Agreement, the Issuer will reimburse the
Agent for the reasonable fees and expenses of its counsel incurred in
connection with the purchase of Securities hereunder. You and we agree to
perform, to the extent applicable, our respective duties and obligations
specifically provided to be performed by each of us in the Procedures.
4. Our obligation to purchase Securities hereunder is
subject to the accuracy on the above Settlement Date of your representations
and warranties contained in Section 2 of the Agency Agreement (it being
understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended at such Settlement Date)
and to your performance and observance of all covenants and agreements
contained in Sections 4 and 6 thereof (as incorporated herein by reference).
Our obligation hereunder is also subject to the following conditions:
(a) the satisfaction, as such Settlement Date, of each of the
conditions set forth in subsections (a) and (d) through (g) of Section
5 of the Agency Agreement (it being understood that each document so
required to be delivered shall be dated such Settlement Date and that
each such condition and the statements contained in each such document
that relates to the Registration Statement or the Prospectus shall be
deemed to relate to the Registration Statement or the Prospectus, as
the case may be, as amended or supplemented at the time of settlement
on such Settlement Date and except that the opinion described in
Section 5(d) of the Agency Agreement shall be modified so as to state
that the Securities being sold on such Settlement Date, when delivered
against payment therefor as provided in the Indenture and this
Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of
the Issuer enforceable in accordance with their terms, subject only to
the exceptions as to enforcement set forth in clause (ii) of Section
5(d) of the Agency Agreement, and will conform to the description
thereof contained in the Prospectus as amended or supplemented at such
Settlement date); and
(b) neither the Registration Statement nor the Prospectus, as
amended or supplemented as of any Representation Date or date of such
solicitation, as the case may be, shall, in the reasonable opinion of
any Agent, contain any untrue statement of fact which is
<PAGE> 28
material or omit to state a fact which is material and is required to
be stated therein or is necessary to make the statements therein not
misleading.
(c) there shall not have occurred (i) any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Issuer or its
subsidiaries which, in our judgment, materially impairs the investment
quality of the Securities; (ii) any downgrading in the rating of the
Issuer's debt securities by Moody's Investors Service, Inc. or
Standard & Poor's Corporation, or any proposal to downgrade such
rating or any public announcement that any such organization has under
surveillance or review its rating of the Securities or any other debt
securities of the Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Issuer on any exchange
or in the over-the-counter market if, in the judgment of the
undersigned, the effect of any such suspension makes it impracticable
or inadvisable to proceed with solicitations of purchases of, or sales
of Securities; (iv) any banking moratorium declared by Federal or New
York authorities; or (v) any outbreak or escalation of major
hostilities in which the United States is involved, any declaration
of war by Congress or any other substantial national or international
calamity or emergency if, in our judgment, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the sale of
and payment for the Securities.
5. In further consideration of our agreement hereunder,
you agree that from the date hereof for the number of days specified in
paragraph 1 hereof (not to extend beyond the above Settlement Date), you will
not offer or sell, or enter into any agreement to sell, or announce the
proposed issuance or sale of any debt securities of the Issuer, including the
Securities, with terms substantially similar to the Securities being purchased
pursuant hereto, other than borrowings under your revolving credit agreements
and lines of credit and issuances of your commercial paper.
6. If our purchase of the above Securities is not
consummated other than because of our default or for any reason other than the
occurrence of an event described in clause (iii), (iv) or (v) of Section 4(c)
above, you shall remain responsible for the expenses to be paid or reimbursed
by you pursuant to Section 4(h) of the Agency Agreement as incorporated herein
and, in any event, the respective
<PAGE> 29
obligations of you and the undersigned pursuant to Section 7 of the Agency
Agreement incorporated by reference herein shall remain in effect.
7. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. This Agreement may be
executed in counterparts and the executed counterparts shall together
constitute a single instrument.
[INSERT NAME OF PURCHASER]
By _________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first
above written:
E. I. DU PONT DE
NEMOURS AND COMPANY
By ___________________
Title:
<PAGE> 1
[Letterhead of]
E.I. DU PONT DE NEMOURS AND COMPANY
[Date]
[Name of Agent]
[Address of Agent]
Dear Sirs:
Please accept this letter as confirmation that E. I. du Pont
de Nemours and Company (the "Company") has appointed you as agent, on the basis
set forth below, solely with respect to certain Medium-Term Notes, Series G,
described in the terms letter dated the date hereof (the "Notes"), a copy of
which is attached hereto.
You will serve as an agent in accordance with the terms, and
subject to the representations, warranties, conditions and agreements, set
forth in the Company's Agency Agreement dated June 15, 1995 (the "Agreement"),
as in effect on the date hereof, except as follows:
(i) Sections 3(a) and 3(e) have been deleted, (ii) the Agent shall not serve as
agent hereunder with respect to any Securities (as defined in the Agreement)
other than the Notes and (iii) the Agreement shall automatically terminate as
to you immediately after settlement occurs with respect to the Notes, subject
to Section 9 thereof.
The Company is hereby furnishing to you, has previously
furnished to you or agrees to furnish to you, as the case may be, the opinions,
certificates and letters
<PAGE> 2
specified in Sections 5(d) through 5(i) of the Agreement, each dated June 15,
1995, and, to the extent required under the Agreement, the opinions,
certificates and letters specified in Sections 6(b) through 6(d) of the
Agreement, each dated as described therein.
By your signing this letter agreement, you confirm that the
Company did not solicit the offer to purchase the Notes.
Notices to you under Section 12 of the Agreement will be sent
to you at the above address (Telephone: [ ]; Telecopy: [
]) or such other address as you may specify in writing hereafter.
If the foregoing correctly sets forth our agreement, please
sign in the space provided below and return to us the enclosed duplicate
original of this letter agreement.
Very truly yours,
E. I. DU PONT DE NEMOURS AND
COMPANY,
by____________________________
Title:
Accepted and agreed to
as of the date first above
written:
[AGENT],
by______________________
Title:
<PAGE> 1
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
E. I. DU PONT DE NEMOURS AND COMPANY
MEDIUM-TERM MASTER NOTE, SERIES G
[ ], 1995]
R-
REGISTERED
E. I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation (the "Company"),
for value received, hereby promises to pay to CEDE & CO. or its registered
assigns: on each Maturity Date, extended Maturity Date, Redemption Date,
Repayment Date, and any other date specified pursuant to terms referenced
hereby, as applicable, of each obligation identified on the records of the
Company (which records are maintained by CHEMICAL BANK (the "Paying Agent")) or
specified pursuant to terms referenced hereby, the principal amount (and
premium, if any) then due and payable for each such obligation, and to pay
interest thereon on each Interest Payment Date or as specified pursuant to
terms referenced hereby.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS MASTER NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE, AND TO THE TERMS OF THE
PROSPECTUS, PROSPECTUS SUPPLEMENT AND PRICING SUPPLEMENTS PREPARED BY THE
COMPANY AND ON FILE WITH THE SECURITIES AND EXCHANGE COMMISSION WHICH CONTAIN
FURTHER INFORMATION WITH RESPECT TO THE OBLIGATIONS OF THE COMPANY REPRESENTED
BY THIS MASTER NOTE.
<PAGE> 2
2
This Master Note is a valid and binding obligation of the
Company.
Unless the certificate of authentication hereon has been
manually executed by or on behalf of the Trustee under the Indenture, this
Master Note shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, E. I. DU PONT DE NEMOURS AND COMPANY has
caused this Master Note to be signed by facsimile by its duly authorized
officers and has caused a facsimile of its corporate seal to be affixed
hereunto or imprinted hereon.
E. I. DU PONT DE NEMOURS
AND COMPANY,
By: _________________________
[Seal] By: _________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the within-mentioned Indenture.
Dated: CHEMICAL BANK,
as Trustee
By: _________________________
Authorized Signatory
<PAGE> 3
3
REVERSE OF MASTER NOTE
E. I. DU PONT DE NEMOURS AND COMPANY
MEDIUM TERM MASTER NOTE SERIES G
This Master Note evidences indebtedness of the Company of a
single Series G (the "Debt Obligations"), all issued or to be issued under and
pursuant to an Indenture dated as of June 1, 1992 (the "Indenture"), duly
executed and delivered by the Company to Chemical Bank, as Trustee (the
"Trustee"), to which Indenture reference is hereby made for a description of
the rights, duties, and immunities thereunder of the Trustee and the rights
thereunder of the holders of the Debt Obligations. As provided in the
Indenture, the Debt Obligations may mature at different times, may bear
interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase, or analogous
funds, if any, may be subject to different covenants and Events of Default and
may otherwise vary as provided or permitted in the Indenture. The Debt
Obligations are unsecured obligations of the Company and rank pari passu with
all other unsecured and unsubordinated indebtedness for borrowed money of the
Company. The Debt Obligations aggregated with any other indebtedness of the
Issuer of this Series G are limited (except as provided in the Indenture) to
the principal amount of $3,442,560,000 designated as the Medium-Term Notes of
the Company Due 9 Months or More from Date of Issue, subject to reduction as a
result of the sale of other Debt Securities relating to the Prospectus dated
May 25, 1994, prepared by the Company and on file with the Securities and
Exchange Commission, such reduction being evidenced in the records of the
Company. No reference herein to the Indenture and no provision of this Master
Note or of the Indenture shall alter or impair the obligations of the Company,
which are absolute and unconditional, to pay the principal of, premium, if any,
and interest, if any, on each Debt Obligation at the times, places, and rates,
and in the coin or currency/currencies identified on the records of the
Company.
The provisions of Section 1301 of the Indenture shall not be
applicable to the Master Note. Principal and any premium and interest payable
at Maturity will be paid in immediately available funds without necessitating
presentation and transfer of this Master Note.
At the request of the registered Holder hereof, the Company
shall promptly issue and deliver one or more
<PAGE> 4
4
separate Registered Securities in definitive form evidencing each Debt
Obligation evidenced by this Master Note. As of the date any such Registered
Security or Securities are issued, the Debt Obligations which are evidenced
thereby shall no longer be evidenced by this Master Note.
Terms used herein which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto [Name, Address and Taxpayer I.D. Number of Assignee] the Master
Note and all rights thereunder, hereby irrevocably constituting and appointing
____________________ attorney to transfer said Master Note on the books of the
Company with full power of substitution in the premises.
Dated: _____________________________
Signature
Signature(s) Guaranteed: Notice: The signature on
this assignment must
correspond with the name as
written upon the face of this
Master Note, in every
particular, without
alteration or enlargement or
any change whatsoever.
<PAGE> 5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
E. I. DU PONT DE NEMOURS AND COMPANY
MEDIUM-TERM NOTE, SERIES G
(SINGLE INDEXED NOTE)
R-
REGISTERED (Face Amount)
If applicable, the "Total Amount of OID", "Yield to Maturity" and
"Initial Accrual Period OID" (computed under the approximate method) below will
be completed solely for the purposes of applying the United States Federal
income tax original issue discount ("OID") rules. Additional information, if
any, may be contained in an appendix hereto.
Floating Rate Note [ ] % Fixed Rate Note [ ]
No. DSE-CUSIP: Option to Elect Payment in
Specified Currency (Only
applicable if Specified
Currency is other than U.S.
Original Issue Date: Dollars):
Face Amount: Yes [ ] No [ ]
Aggregate Face Amount: Authorized Denominations
(Only applicable if
Specified Currency is
other than U.S. Dollars):
Issue Price: Interest Payment Period:
Maturity Date: Interest Payment Dates:
Redemption Redemption Total Amount of OID:
Date(s) Prices
Yield to Maturity:
Repayment Repayment Initial Accrual Period OID:
Date(s) Prices
Denominated Currency: Determination Agent:
Indexed Currency: Reference Dealer:
Base Exchange Rate:
Only applicable if this is a Floating Rate Note:
Initial Interest Rate: Interest Reset Period: Spread Multiplier:
Base Rate: Interest Reset Dates: Maximum Interest
Rate:
Index Maturity: Spread (plus or minus): Minimum Interest
Rate:
<PAGE> 6
E. I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation (the "Company"),
for value received, hereby promises to pay to
or registered assigns, in the Denominated Currency on the Maturity Date an
amount equal to the Face Amount hereof, plus or minus an amount determined by
the Determination Agent in accordance with the following formula:
If the Spot Rate exceeds or equals the Base
Exchange Rate, the principal amount of this Note payable at Maturity shall
equal:
Face Amount + (Face Amount x Spot Rate - Base Exchange Rate).
-------------------------------
Spot Rate )
If the Base Exchange Rate Exceeds the Spot
Rate, the principal amount of this Note payable at Maturity (which shall, in no
event, be less than zero) shall equal:
Face Amount - (Face Amount x Base Exchange Rate - Spot Rate)
-------------------------------
Spot Rate )
where (i) "Base Exchange Rate" is the exchange rate specified as such above and
(ii) "Spot Rate" is the rate which shall be the arithmetic mean of the open
market spot offer quotations for the Indexed Currency (spot bid quotations for
the Denominated Currency) obtained by the Determination Agent from the
Reference Dealer specified above in The City of New York at 11:00 a.m. New York
City time on the second Exchange Rate Day prior to Maturity (the "Determination
Date") for an amount of Indexed Currency equal to the product of the Aggregate
Face Amount and the Base Exchange Rate, in the Denominated Currency. If the
Spot Rate is less than or equal to one-half of the Base Exchange Rate, the Spot
Rate will be deemed to be one-half of the Base Exchange Rate and no principal
amount shall be payable hereon at Maturity. In the absence of manifest error,
the aforementioned determinations by the Determination Agent shall be final and
binding on the Company and the Holders hereof.
Interest will be payable by the Company in he
Denominated Currency on each Interest Payment Date and at Maturity at a rate
per annum equal to the Base Rate specified in the applicable Pricing Supplement
multiplied by an Interest Index Factor. The "Interest Index Factor" shall be
an amount determined by the Determination Agent by reference to the following
formula:
Interest Spot Rate
------------------
Base Exchange Rate
where, "Interest Spot Rate" is (i) if at an Interest Payment Date the rate at
which the Denominated Currency can be exchange for the Indexed Currency as
determined on the second Exchange Rate Day prior to such Interest Payment Date
(the "Interest Determination Date") by the Determination Agent in the manner
specified in the applicable Pricing Supplement, on such Interest Determination
Date, for an amount of Indexed Currency equal to (a) the product of (x) the
Aggregate Face Amount and (y) the Base Rate, multiplied by (b) the Base
Exchange Rate and (ii) if at Maturity, the Spot Rate.
"Exchange Rate Date" means any day which is a
Business Day in The City of New York and (a) when the Denominated Currency or
any Indexed Currency is the Canadian Dollar, in Toronto, Canada, (b) when the
Denominated Currency or any Indexed Currency is the Japanese Yen, in Tokyo,
Japan, (c) when the Denominated Currency or any Indexed Currency is the
Deutsche Mark, in Frankfurt, Germany, (d) when the Denominated Currency or any
Indexed Currency is the Pound Sterling, in London, England, (e) when the
Denominated Currency or any Indexed Currency is Australian Dollars, in
Melbourne or Sydney, Australia, (f) when the Denominated Currency or any
Indexed Currency is European Currency Units, in the major financial center of
each country that issues a component currency of the European Currency Units,
and/or (g) when the Denominated Currency or any Indexed Currency is any other
currency or currency unit (other than U.S. dollars), in the capital and/or the
principal financial center of the country of such Denominated Currency or any
Indexed Currency.
"Reference Dealer" means the bank or firm
specified as such on the face hereof or, if it shall be unwilling or unable to
provide the requested quotations, such other major money center bank or banks
or other major foreign exchange dealer or dealers in The City of New York
selected by the Company, in consultation with the Determination Agent, to act
as Reference Dealer or Dealers in replacement therefor.
"Aggregate Face Amount" means the amount
specified as such above.
REFERENCE IS HEREBY MADE TO THE FURTHER
PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER
PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS
PLACE.
Unless the certificate of authentication
hereon has been manually executed by or on behalf of the Trustee under the
Indenture, this Note shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
<PAGE> 7
IN WITNESS WHEREOF, E.I. DU PONT DE NEMOURS
AND COMPANY has caused this Note to be signed by facsimile by its duly
authorized officers and has caused a facsimile of its corporate seal to be
affixed hereunto or imprinted hereon.
E. I. DU PONT DE NEMOURS AND COMPANY
By:________________________________
[Seal]
By:________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued
under the within-mentioned
Indenture.
Dated: CHEMICAL BANK,
as Trustee
By:________________________________
Authorized Signatory
<PAGE> 8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
E. I. DU PONT DE NEMOURS AND COMPANY
MEDIUM-TERM NOTE, SERIES G
(MULTI-INDEXED NOTE)
R-
REGISTERED (Multi-Indexed Face Amount)
If applicable, the "Total Amount of OID", "Yield to Maturity" and
"Initial Accrual Period OID" (computed under the approximate method) below will
be completed solely for the purposes of applying the United States Federal
income tax original issue discount ("OID") rules. Additional information, if
any, may be contained in an appendix hereto.
Floating Rate Note [ ] % Fixed Rate Note [ ]
No. DSE-CUSIP: Option to Elect Payment in
Specified Currency (Only
applicable if Specified
Currency is other than U.S.
Original Issue Date: Dollars):
Multi-Indexed Face Amount: Yes [ ] No [ ]
Aggregate Face Amount: Authorized Denominations
(Only applicable if
Specified Currency is other
than U.S. Dollars):
Issue Price: Interest Payment Period:
Maturity Date: Interest Payment Dates:
Redemption Redemption Total Amount of OID:
Date(s) Price(s)
Yield to Maturity:
Repayment Repayment Initial Accrual Period OID:
Date(s) Price(s)
Denominated Currency: Determination Agent:
Indexed Currencies: Reference Dealer:
First Indexed Currency:
Second Indexed Currency:
Base Exchange Rate:
First Indexed Currency:
Second Indexed Currency:
Only applicable if this is a Floating Rate Note:
Initial Interest Rate: Interest Reset Period: Spread Multiplier:
Base Rate: Interest Reset Dates: Maximum Interest
Rate:
Index Maturity: Spread (plus or minus): Minimum Interest
Rate:
[1312-054(2)/N03.609/120A/4575]
<PAGE> 9
E. I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation (the "Company"),
for value received, hereby promises to pay to
or registered assigns, the principal sum equal to the product of (i) the
"Multi-Index Face Amount" (any currency or currency unit other than U.S.
dollars being hereinafter referred to as a "Specified Currency") and (ii) the
Index Factor (as defined below) on the "Maturity Date", as set forth above, and
to pay interest on the Multi-Index Face Amount (computed on the basis of a 360
day year of twelve 30-day months) as described below and on the reverse hereof.
The principal of this Note will be payable by the Company in U.S. dollars
in an amount equal to the product of (i) the Multi-Index Face Amount hereof and
(ii) the "Index Factor", rounded upward to the nearest unit of the Denominated
Currency, determined by the Determination Agent as set forth in the next two
sentences; provided, however, that the principal shall in no event be less than
zero. The "Index Factor" shall be the amount determined by the Determination
Agent specified above (the "Determination Agent") in accordance with the
following formula (provided, however, that the Index Factor shall in no event
be less than zero):
Index Factor-
<TABLE>
<S> <C> <C>
Spot Exchange Rate (First Indexed Currency) - Base Exchange Rate (Second Indexed Currency)
------------------------------------------------------------------------------------------
1+ Base Exchange Rate (First Indexed Currency) Spot Exchange Rate (Second Indexed Currency)
</TABLE>
where (i) "Base Exchange Rate (First Indexed Currency)" and "Base Exchange Rate
(Second Indexed Currency)" are the respective exchange rates specified as such
above, (ii) "Spot Exchange Rate (First Indexed Currency)" is the rate which the
First Indexed Currency can be exchange for the Denominated Currency as
determined on the second Exchange Rate Day prior to Maturity hereof (the
"Determination Date") by the Determination Agent based upon the arithmetic mean
of the open market spot offer quotations for the First Indexed Currency (spot
bid quotation for Denominated Currency) obtained by the Determination Agent
from the Reference Dealer (as defined below) in The City of New York at 11:00
a.m. New York City time on the Determination Date, for an amount of First
Indexed Currency equal to the Multi-Indexed Face Amount hereof multiplied by
the Base Exchange Rate (First Indexed Currency), with the Denominated Currency
for settlement at Maturity, and (iii) "Spot Exchange Rate (Second Indexed
Currency)" is the rate at which the Denominated Currency can be exchange for
Second Indexed Currency as determined on the Determination Date by the
Determination Agent based upon the arithmetic mean of the open market spot
offer quotations for Second Indexed Currency (spot bid quotations for
Denominated Currency) obtained by the Determination Agent from the Reference
Dealer in The City of New York at 11:00 a.m. New York City time on the
Determination Date, for an amount of Second Indexed Currency equal to the
Multi-Indexed Face Amount hereof multiplied by the Base Exchange Rate (Second
Indexed Currency), with the Denominated Currency for settlement at Maturity.
In the absence of manifest error, the determination by the Determination Agent
of the Spot Exchange Rate (First Indexed Currency), Spot Exchange Rate (Second
Indexed Currency), he Index Factor and the Principal amount hereof payable at
Maturity shall be final and binding on the Company and the Holders hereof.
"Exchange Rate Date" means any day which is a Business Day in The City of
New York and (a) when the Denominated Currency or any Indexed Currency is the
Canadian Dollar, in Toronto, Canada, (b) when the Denominated Currency or any
Indexed Currency is the Japanese Yen, in Tokyo, Japan, (c) when the Denominated
Currency or any Indexed Currency is the Deutsche Mark, in Frankfurt, Germany,
(d) when the Denominated Currency or any Indexed Currency is the Pound
Sterling, in London, England, (e) when the Denominated Currency or any Indexed
Currency is Australian Dollars, in Melbourne or Sydney, Australia, (f) when the
Denominated Currency or any Indexed Currency is European Currency Units, in the
major financial center of each country that issues a component currency of the
European Currency Units and/or (g) when the Denominated Currency or any Indexed
Currency is any other currency or currency unit (other than U.S. dollars), in
the capital and/or the principal financial center of the country of such
Denominated Currency or any Indexed Currency.
"Reference Dealer" means the bank(s) or firm(s) specified as such above
or, if it shall be unwilling or unable to provide the requested quotations,
such other major money center bank or banks or other major foreign dealer or
dealers in The City of New York selected by the Company, in consultation with
the Determination Agent, to act as Reference Dealer or Dealers in replacement
therefor.
"Aggregate Face Amount" means the amount specified as such above.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
<PAGE> 10
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, E.I. DU PONT DE NEMOURS AND COMPANY has caused this
Note to be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
E. I. DU PONT DE NEMOURS AND COMPANY
By:________________________________
[Seal]
By:________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the within-mentioned Indenture.
Dated: CHEMICAL BANK,
as Trustee
By:________________________________
Authorized Signatory
<PAGE> 11
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
E. I. DU PONT DE NEMOURS AND COMPANY
MEDIUM-TERM NOTE, SERIES G
R-
REGISTERED (Principal Amount)
If applicable, the "Total Amount of OID", "Yield to Maturity" and
"Initial Accrual Period OID" (computed under the approximate method) below will
be completed solely for the purposes of applying the United States Federal
income tax original issue discount ("OID") rules. Additional information, if
any, may be contained in an appendix hereto.
<TABLE>
<CAPTION>
Floating Rate Note [ ] % Fixed Rate Note [ ]
<S> <C>
No. DSE-CUSIP: Option to Elect Payment in Specified Currency (Only
applicable if Specified Currency is other than U.S.
Original Issue Date: Dollars):
Principal Amount: Yes [ ] No [ ]
Issue Price: Authorized Denominations (Only applicable if Specified
Currency is other than U.S.
Dollars):
Maturity Date:
Interest Payment Period:
Redemption Redemption
Date(s) Date(s) Interest Payment Dates:
Total Amount of OID:
Repayment Repayment Yield to Maturity:
Date(s) Date(s)
Initial Accrual Period OID:
</TABLE>
Only applicable if this is a Floating Rate Note:
Initial Interest Rate: Interest Reset Period: Spread Multiplier:
Base Rate: Interest Reset Dates: Maximum Interest Rate:
Index Maturity: Spread (plus or minus): Minimum Interest Rate:
E. I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation (the "Company"),
for value received, hereby promises to pay to
or registered assigns, the principal sum of
(Specified Currency) on the "Maturity Date", as set forth above, and to pay
interest thereon as described on the reverse hereof.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
<PAGE> 12
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, E.I. DU PONT DE NEMOURS AND COMPANY has caused this
Note to be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
E. I. DU PONT DE NEMOURS AND COMPANY
By:________________________________
[Seal] By:________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the within-mentioned Indenture.
Dated: CHEMICAL BANK,
as Trustee
By:________________________________
Authorized Signatory
<PAGE> 13
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
E. I. DU PONT DE NEMOURS AND COMPANY
MEDIUM-TERM NOTE, SERIES G
(FIXED RATE DUAL CURRENCY NOTE)
R-
REGISTERED (Face Amount)
If applicable, the "Total Amount of OID", "Yield to Maturity" and
"Initial Accrual Period OID" (computed under the approximate method) below will
be computed solely for the purposes of applying the United States Federal
income tax original issue discount ("OID") rules. Additional information, if
any, may be contained in an appendix hereto.
<TABLE>
<S> <C> <C>
No. DSE-CUSIP:
Original Issue Date: Interest Payment Period:
Face Amount: Interest Payment Dates:
Face Amount Currency: Optional Payment Currency:
Issue Price: Designated Exchange Rate:
Maturity Date: Interest Rate:
Redemption Redemption Option Election Dates:
Date(s) Date(s)
Option Value Calculation Agent:
Specified Currency/Currencies:
Total Amount of OID:
Redemption Redemption Yield to Maturity:
Date(s) Date(s)
Initial Accrual Period OID:
Option to Elect Payment in Specified Currency/Currencies
(only applicable if Specified Currency/Currencies is other than
U.S. Dollars):
Authorized Denominations (only applicable if Specified
Currency/urrencies is other than U.S. Dollars):
</TABLE>
E. I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation (the
"Company"), for value received, hereby promises to pay to
or registered assigns, the Face Amount specified above (the "Face Amount"), on
the Maturity Date specified above (the "Maturity Date") in the currency as at
the time of payment shall be legal tender for the payment of public and private
debts in the country of the Face Amount Currency indicated above (the "Face
Amount Currency"), and to pay interest on the Face Amount in the Face Amount
Currency from the Original Issue Date stated above (the "Original Issue Date")
or from the most recent Interest Date to which interest has been paid or duly
provided for, at the Interest Rate per annum set forth above (the "Interest
Rate"), on the Interest Payment Date or Dates specified above and on the
Maturity Date (each such date herein being called an "Interest Payment Date")
the first payment to be made on the first Interest Payment Date following the
Original Issue Date, until payment of the principal hereof has been made or
made available for payment (computed on the basis of a 360 day year of twelve
30-day months) as described below and on the reverse hereof.
<PAGE> 14
The Company may elect on each Option Election Date specified above
(each such date herein being called an "Option Election Date") to pay the
amounts due on the succeeding Interest Payment Date in the Optional Payment
Currency specified above (the "Optional Payment Currency") instead of in the
Face Amount Currency. The amounts due in the Optional Payment Currency on any
Interest Payment Date shall be determined by the Company using the Designated
Exchange Rate specified above (the "Designated Exchange Rate"). If such
election is made, the Company shall notify the Trustee of the election on the
Option Election Date and the Trustee shall give, on behalf and at the expense
of the Company, notice to the Holder in the manner provided in Section 106 of
the Indenture. Such notice shall state (i) the Interest Payment Date and (ii)
the exchange rate to be used to convert amounts from the Face Amount Currency
to the Optional Payment Currency, which rate shall be the Designated Exchange
Rate. Any such notice by the Company to the Trustee on an Option Election
Date, once given, may not be withdrawn. If the Company elects on any Option
Election Date to pay the amounts due on the succeeding Interest Payment Date in
the Optional Payment Currency, then it shall pay all amounts (including
principal) due with respect to the issuance of this Note in the Optional
Payment Currency on such Interest Payment Date. If the Company does not elect
on an Option Election Date to pay the amount due on the succeeding Interest
Payment Date in the Optional Payment Currency, then such payment shall be made
in the Face Amount Currency and no notice of such payment need be given.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been manually
executed by or on behalf of the Trustee under the Indenture, this Note shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, E. I. DU PONT DE NEMOURS AND COMPANY has caused
this Note to be signed by facsimile by its duly authorized officers and has
caused a facsimile of its corporate seal to be affixed hereunto or imprinted
hereon.
E. I. DU PONT DE NEMOURS AND COMPANY
By:________________________________
[Seal] By:________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes issued under the within-mentioned Indenture.
Dated: CHEMICAL BANK,
as Trustee
By:________________________________
Authorized Signatory
<PAGE> 15
[REVERSE OF REGISTERED NOTE]
E. I. DU PONT DE NEMOURS AND COMPANY
Medium-Term Note, Series G
1. This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, all such securities issued and to
be issued under an Indenture dated as of June 1, 1992, between the Company and
Chemical Bank, as Trustee (herein called the "Indenture"), to which Indenture
reference is hereby made for a statement of the rights and limitations of
rights thereunder of the Holders of the Securities and of the rights,
obligations, duties and immunities of the Trustee for each series of Securities
and of the Company, and the terms upon which the Securities are and are to be
authenticated and delivered. As provided in the Indenture, the Securities may
be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest, if any, at different rates, may be subject to different redemption
provisions, if any, may be subject to different sinking, purchase or analogous
funds, if any, may be subject to different covenants and Events of Default and
may otherwise vary as provided or permitted in the Indenture. This Note is one
of a series of the Securities designated therein as Medium-Term Notes, Series G
(the "Notes"). The Notes of this series may be issued at various times with
different maturity dates and different principal repayment provisions, may bear
interest at different rates, may be payable in different currencies and may
otherwise vary, all as provided in the Indenture.
2. A. The principal of (and premium, if any) and/or interest on this Note
are payable by the Company in such coin or currency/currencies specified on the
face hereof as at the time of payment shall be legal tender for the payment of
public and private debts (the "Specified Currency"). If the Specified Currency
is other than U.S. Dollars, the Company will arrange to have all such payments
converted into U.S. Dollars in the manner described below. Notwithstanding the
foregoing, the Holder hereof may, if so indicated on the face hereof, elect to
receive all payments in respect hereof in the Specified Currency by delivery of
a
<PAGE> 16
2
written request to the Paying Agent on or prior to the applicable Regular
Record Date or at least 15 calendar days prior to Maturity, as the case may be.
Such election will remain in effect unless and until changed by written notice
to the Paying Agent received on or prior to the applicable Regular Record Date
or at least 15 calendar days prior to Maturity, as the case may be.
B. The Regular Record Date with respect to any Interest Payment Date (as
defined below) shall be the date 15 calendar days, unless otherwise specified
on the face hereof, immediately preceding such Interest Payment Date, whether
or not such date shall be a Business Day. Interest which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the person in whose name a Note is registered at the close of business
on the Regular Record Date next preceding such interest Payment Date; provided,
however, that interest payable on the Interest Payment Date occurring at
Maturity will be paid to the person to whom principal shall be payable;
provided, further, that the first payment of interest on any Registered Note
with an Original Issue Date between a Regular Record Date and an Interest
Payment Date or on an Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Regular Record Date to the
registered owner on such next succeeding Regular Record Date. Notwithstanding
the foregoing, any interest that is payable but not punctually paid or duly
provided for on any Interest Payment Date shall forthwith cease to be payable
to the registered Holder thereof on such Regular Record Date, and may be paid
to the person in whose name such Note is registered on the close of business on
a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof having been given to the Holder of such Note not
less than ten days prior to such Special Record Date, or may be paid at any
time and in any other lawful manner, as more fully provided in the Indenture.
"Business Day" means any day, other than a Saturday or Sunday, that meets each
of the following applicable requirements: the day is (a) not a day on which
banking institutions are authorized or required by law or regulation to be
closed in The City of New York, (b) if this Note is denominated or payable in a
Specified Currency other than U.S. Dollars, (i) not a day on which banking
institutions are authorized or required by law or regulation close in the major
financial center of the country issuing the Specified Currency (which in the
case of ECU shall include the financial center of each country that issues a
<PAGE> 17
3
component currency of the ECU) and (ii) a day on which banking institutions,in
such financial center are carrying out transactions in such Specified Currency
and (c) with respect to LIBOR Notes, a London Banking Day. "London Banking
Day" means any day on which dealings in deposits in U.S. Dollars are transacted
in the London interbank market. In connection with any calculations, all
percentages will be rounded upwards, if necessary, to the nearest one
hundred-thousandth of a percentage point (with five one-millionths of a
percentage point being rounded upwards), and all currency or currency unit
amounts used and resulting from such calculations on the Notes will be rounded
to the nearest one-hundredth of a unit (with five one-thousandths of a unit
being rounded upwards).
C. If this is a Fixed Rate Note, the Company promises to pay interest on
the principal amount at the rate per annum shown on the face hereof until the
principal amount hereof is paid or made available for payment. Unless
otherwise provided on the face hereof, the Company will pay interest
semi-annually on each May 1 and November 1 (each an "Interest Payment Date"),
commencing with the Interest Payment Date immediately following the Original
Issue Date shown on the face hereof and at Maturity. Interest will accrue from
and including the most recent Interest Payment Date or, if no interest has been
paid or duly provided for, from and including the Original Issue Date on the
face hereof, to, but excluding the Interest Payment Date. The amount of such
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months.
D. If this is a Floating Rate Note, the Company promises to pay interest on
the principal amount at the rate per annum equal to the Initial Interest Rate
shown on the face hereof until the first Interest Reset Date shown on the face
hereof following the Original Issue Date specified on the face hereof and
thereafter at a rate determined in accordance with the provisions below under
the heading "Determination of Commercial Paper Rate", "Determination of LIBOR",
"Determination of Treasury Rate", "Determination of Prime Rate", "Determination
of Federal Funds Rate" or "Determination of Eleventh District Cost of Funds
Rate" depending upon whether the Base Rate specified on the face hereof is
Commercial Paper Rate, LIBOR, Treasury Rate, Prime Rate, Federal Funds Rate or
Eleventh District Cost of Funds Rate, respectively, until the principal hereof
is paid or duly made available for payment. The Company will pay
<PAGE> 18
4
interest monthly, quarterly, semi-annually or annually as specified on the face
hereof opposite "Interest Payment Period", commencing with the first Interest
Payment Date specified on the face hereof next succeeding the Original Issue
Date and at Maturity. Unless otherwise provided on the face hereof, the dates
on which interest will be payable (each an "Interest Payment Date") will be, in
the case of Floating Rate Notes with a daily, weekly or monthly Interest
Payment Period, the third Wednesday of each month; in the case of Floating Rate
Notes with a quarterly Interest Payment Period, the third Wednesday of March,
June, September and December; in the case of Floating Rate Notes with a
semi-annual Interest Payment Period, the third Wednesday of the two months
specified on the face hereof; and in the case of Floating Rate Notes with an
annual Interest Payment Period, the third Wednesday of the month specified on
the face hereof; provided, however, that if an Interest Payment Date would fall
on a day that is not a Business Day, such Interest Payment Date shall be the
following day that is a Business Day, except that if the Base Rate is LIBOR and
such following day is in the next succeeding calendar month, such Interest
Payment Date shall be the immediately preceding Business Day.
The interest payable on a Floating Rate Note on each Interest Payment Date
will include accrued interest from and including the Original Issue Date or
from and including the last date in respect of which interest has been paid, as
the case may be, to but excluding such Interest Payment Date; provided,
however, that if the Interest Reset period is daily or weekly, the interest
payable on each Interest Payment Date, other than at Maturity, will include
accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to and including, the Record Date immediately preceding such Interest
Payment Date, and the interest payable at Maturity will include accrued
interest from and including the Original Issue Date or from and including the
last date in respect of which interest has been paid, as the case may be, to,
but excluding, the date of Maturity. Such accrued interest will be calculated
by multiplying the principal amount hereof by an accrued interest factor. This
accrued interest factor shall be computed by adding the interest factors
calculated for each day in the period for which accrued interest is being
calculated. The interest factor (expressed as a decimal) for each such day
shall be computed by dividing the interest rate applicable to such day by 360
<PAGE> 19
5
if the Base Rate is commercial Paper Rate, LIBOR, Prime Rate, Federal Funds
Rate or Eleventh District Cost of Funds Rate, as indicated on the face hereof,
or by the actual number of days in the year if the Base Rate is Treasury Rate,
as indicated on the face hereof. The interest rate in effect on each day will
be (a) if such day is an Interest Reset Date, the interest rate with respect to
the Interest Determination Date pertaining to such Interest Reset Date or if
such day is not an Interest Reset Date, the interest rate with respect to the
Interest Determination Date pertaining to the next preceding Interest Reset
Date; provided, however, that (i) the interest rate in effect from the original
issue Date to the first Interest Reset Date will be the Initial Interest Rate
and (ii) the interest rate in effect for the ten calendar days immediately
prior to Maturity will be that in effect on the tenth calendar day preceding
Maturity. Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any shown on the face hereof. In addition, the interest rate
hereon shall in no event be higher than the maximum rate, if any, permitted by
New York law as the same may be modified by United States law of general
application. Commencing with the first Interest Reset Date specified on the
face hereof following the Original Issue Date and thereafter upon each
succeeding Interest Reset Date specified on the face hereof, the rate at which
interest on a Floating Rate Note is payable shall be adjusted as specified on
the face hereof opposite Interest Reset Period; provided, however, that if any
Interest Reset Date would otherwise be a day that is not a Business Day, such
Interest Reset Date shall be postponed to the next day that is a Business Day,
except that (i) if the Base Rate is LIBOR and such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day or (ii) if the Base Rate is Treasury Rate and the
Interest Reset Date falls on a date which is an auction date, the Interest
Reset Date shall be the following day that is a Business Day.
The Interest Determination Date pertaining to an Interest Reset Date will be
(i) if the Base Rate is Commercial Paper Rate, Prime Rate, Federal Funds Rate
or Eleventh District Cost of Funds Rate, the second Business Day preceding such
Interest Reset Date, (ii) if the Base Rate is LIBOR, the second London Banking
Day preceding such Interest Reset Date or (iii) if the Base Rate is Treasury
Rate, the day of the week in which such Interest Reset Date
<PAGE> 20
6
falls on which Treasury bills (as defined below) would normally be auctioned.
Treasury bills are normally sold at auction on Monday of each week, unless that
day is a legal holiday, in which case the auction is normally held on the
following Tuesday, except that such auction may be held on the preceding
Friday. If, as a result of a legal holiday, an auction is so held on the
preceding Friday, such Friday will be the Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week.
If an auction date shall fall on any Interest Reset Date for a Floating Rate
Note where the Base Rate is the Treasury Rate, then such Interest Reset Date
shall instead be the first Business Day immediately following such auction
date.
Subject to applicable provisions of law and except as specified herein, on
each Interest Reset Date the rate of interest shall be the rate determined in
accordance with the provisions of the applicable heading below.
Determination of Commercial Paper Rate. If the Base Rate is Commercial
Paper Rate, as indicated on the face hereof, the interest rate shall equal (a)
the Money Market Yield (as defined herein) on the Interest Determination Date
of the rate for commercial paper having the Index Maturity specified on the
face hereof (1) as published in "Statistical Release H.15(519), Selected
Interest Rates" or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "Commercial Paper", or
(2) if such rate is not so published by 9:00 a.m., New York City time, on the
Calculation Date (as defined below) pertaining to such Interest Determination
Date, then as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 p.m. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Commercial Paper" or
(b) if such rate is not so published by 3:00 p.m., New York City time on such
Interest Determination Date, the Money Market Yield of the arithmetic mean as
calculated by the Calculation Agent of the offered rates, as of 3:30 p.m, New
York City time on such Calculation Date, of three leading dealers of commercial
paper in The City of New York, selected by the Calculation Agent, for
commercial paper having the Index Maturity specified on the face hereof placed
for an industrial issuer whose bond rating is "AA", or the equivalent, from a
nationally recognized rating agency, in each of the above cases adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof,
and/or by multiplication by the Spread Multiplier,
<PAGE> 21
7
if any, specified on the face hereof; provided, however, that if such dealers
are not quoting as mentioned above, the interest rate in effect hereon shall be
the interest rate in effect hereon on such Interest Determination Date.
"Money Market Yield" shall be the yield calculated in accordance with the
following formula:
D x 360
Money Market Yield = ---------------------------- x 100
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of LIBOR. If the Base Rate indicated on the face hereof is
LIBOR, with respect to LIBOR indexed to the offered rates for U.S. Dollar
deposits, the interest rate shall equal the rate for deposits in U.S. Dollars
having the Index Maturity specified on the face hereof commencing on the second
London Banking Day immediately following the Interest Determination Date which
appears on the Telerate Page 3750 (as defined herein) as of 11:00 a.m. London
time, on such Interest Determination Date, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, if such rate does not so appear on the Telerate Page 3750,
the rate in respect of such Interest Determination Date will be determined on
the basis of the rates at which deposits in U.S. Dollars are offered by four
major banks in the London interbank market (selected by the Calculation Agent)
at approximately 11:00 a.m., London time, on the Interest Determination Date
next preceding the relevant Interest Reset Date to prime banks in the London
interbank market for a period of the Index Maturity commencing on that Interest
Reset Date and in a principal amount equal to an amount not less than
$1,000,000 that is representative for a single transaction in such market at
such time. In such case, the Calculation Agent will request the principal
London office of each of the aforesaid major banks to provide a quotation of
such rate. If at least two such quotations are provided in respect of such
Interest Determination Date, the rate for that Interest Reset Date will be the
arithmetic mean of the quotations, and, if fewer than two quotations are
provided as requested in respect of
<PAGE> 22
8
such Interest Determination Date, the rate for that Interest Reset Date will be
the arithmetic mean of the rates quoted by major banks in New York City,
selected by the Calculation Agent, at approximately 11:00 a.m. New York City
time on that Interest Determination Date for loans in U.S. dollars to leading
European banks for a period of the Index Maturity commencing on that Interest
Reset Date and in a principal amount equal to an amount not less than
$1,000,000 that is representative for a single transaction in such market at
such time, each of the aforementioned cases following the proviso above
adjusted by the addition or subtraction of the spread if any, specified on the
face hereof and/or by multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, if the aforesaid rate cannot
be so determined by the Calculation Agent, LIBOR in respect of such LIBOR
Interest Determination Date will be LIBOR then in effect on such Interest
Determination Date. "Telerate Page 3750" means the display page so designated
on the Dow Jones Telerate Service (or such other page as may replace that page
on that service, or such other service as may be nominated as the information
vendor, for the purpose of displaying rates or prices relating to LIBOR).
Determination of Treasury Rate. If the Base Rate is Treasury Rate as
indicated on the face hereof, the interest rate shall equal the rate for the
most recent auction with respect to the Interest Determination Date of direct
obligations of the United States ("Treasury bills") having the Index Maturity
shown on the face hereof as published in the H.15(519), under the heading "U.S.
Government securities--Treasury bills--Auction Average (Investment)" or, if not
so published by 9:00 a.m., New York City time, on the Calculation Date (as
defined below) pertaining to such Interest Determination Date, the auction
average rate (expressed as a bond equivalent on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) for such auction as
otherwise announced by the United States Department of the Treasury, in either
case, adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, or by multiplication by the Spread Multiplier, if any,
specified on the face hereof. In the event that the results of the auction of
Treasury bills having the Index Maturity shown on the face hereof are not
published or announced as provided above by 3:00 p.m., New York City time, on
such Calculation Date or if no such auction is held in a particular week, then
the rate of interest hereon shall be calculated by the Calculation Agent and
shall be a yield to maturity (expressed as a bond
<PAGE> 23
9
equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) of the arithmetic mean of the secondary market bid
rates, as of approximately 11:00 a.m., New York City time, on such Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent for the issue of Treasury
bills with a remaining maturity closest to the Index Maturity shown on the face
hereof, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by multiplication by the Spread
Multiplier, if any, specified on the face hereof; provided, however, that if
the dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the interest rate in effect hereon shall be the
rate in effect hereon on such Interest Determination Date.
Determination of Prime Rate. If the Base Rate specified on the face hereof
is Prime Rate, the interest rate shall equal the rate on such date as such rate
is published in H.15(519) under the heading "Bank Prime Loan." If such rate is
not published prior to 3:00 P.M., New York City time, on the related
Calculation Date, then the Prime Rate shall be the arithmetic mean of the rates
of interest publicly announced by each bank that appears on the Reuters Screen
NYMF Page (as defined below) as such bank's prime rate or base lending rate as
in effect for such Interest Determination Date. If fewer than four such rates
but more than one such rate appear on the Reuters Screen NYMF Page for such
Interest Determination Date, the Prime Rate shall be the arithmetic mean of the
prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent. If fewer than two such rates appear on the
Reuters Screen NYMF Page, the Prime Rate will be determined by the Calculation
Agent on the basis of the rates furnished in The City of New York by three
substitute banks or trust companies organized and doing business under the laws
of the United States, or any State thereof, having total equity capital of at
least $500 million and being subject to supervision or examination by Federal
or State authority, selected by the Calculation Agent to provide such rate or
rates; provided, however, that if the banks or trust companies selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate
determined as of such Interest Determination Date will be the Prime Rate in
effect on such Prime Rate Interest Determination Date.
"Reuters Screen NYMF Page" means the display designated as page "NYMF" on
the Reuters Monitor Money Rates Service (or such other page as may replace the
NYMF page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
Determination of Federal Funds Rate. If the Base Rate specified on the face
hereof is Federal Funds Rate, the interest rate with respect to any Interest
Determination Date shall equal the rate set forth in H.15(519) for that
<PAGE> 24
10
day opposite the caption "Federal Funds (Effective)". If such rate for any
Interest Determination Date is not published in H.15(519) by 9:00 a.m., New
York City time, on the Calculation Date, the rate for that Interest
Determination Date will be the rate set forth in the statistical release
designated as the Composite 3:30 p.m. Quotations for U.S. Government
Securities, or any successor publication, published by the Federal Reserve Bank
of New York ("Composite 3:30 p.m. Quotations for U.S. Government Securities")
for that day under the caption "Federal Funds/Effective Rate". If by 9:00
a.m., New York City time, on the Calculation Date the rate for any Interest
Determination Date is not yet published in either H.15(519) or Composite 3:30
p.m. Quotations for U.S. Government Securities, the rate for that Interest
Determination Date will be the arithmetic mean of the rates for the last
transaction in overnight U.S. Dollar Federal funds arranged by three leading
brokers, selected by the Calculation Agent, of U.S. Dollar Federal funds
transactions in New York City prior to 9:00 a.m., New York City time, on the
applicable Interest Determination Date, each of the aforementioned cases
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof and/or by multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, that if rates are not
available as aforesaid, the Federal Funds Rate with respect to such Interest
Determination Date will be the Federal Funds Rate then in effect on such
Interest Determination Date.
Eleventh District Cost of Funds Rate. If the Base Rate specified on the
face hereof is Eleventh District Cost of Funds Rate, the interest rate with
respect to any Interest Determination Date will be the monthly weighted average
cost of funds as set forth under the caption "11th District" on the Telerate
Page 7175 as of 11:00 a.m., San Francisco time, on that Interest Determination
Date. If such rate does not so appear on the Telerate Page 7175, the rate for
that Interest Determination Date will be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced by the Federal Home Loan Bank of San
Francisco (the "FHLBSF") or its successor, as such cost of funds for the
calendar month preceding the date of such announcement, each of the
aforementioned cases adjusted by the addition or subtraction of the Spread, if
any, specified on the face hereof and/or by multiplication by the Spread
Multiplier, if any, specified on the Face
<PAGE> 25
11
hereof; provided, however, if the FHLBSF fails to so announce such rate for
that calendar month, then the rate in respect to such Interest Determination
Date will be the Eleventh District Cost of Funds Rate then in effect on such
Interest Determination Date. "Telerate Page 7175" means the display page so
designated on the Dow Jones Telerate Service (or such other page as may replace
that page on that service, or such other service as may be nominated as the
information vendor, for the purpose of displaying rates or prices relating to
the Eleventh District Cost of Funds Rate).
The Calculation Date pertaining to a Treasury Rate Interest Determination
Date, Federal Funds Interest Determination Date and Commercial Paper Rate
Interest Determination Date shall be the earlier of (i) the tenth calendar day
after such Interest Determination Date or if any such day is not a Business
Day, the next succeeding Business Day and (ii) the Business Day next preceding
the relevant Interest Payment Date or the Maturity Date, as the case may be.
Initially, Chemical Bank shall be the Calculation Agent. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing and
will confirm in writing such calculation to the Trustee and any Paying Agent
immediately after each determination. Neither the Trustee nor any Paying Agent
shall be responsible for any such calculation. At the request of the Holder
hereof, the Calculation Agent will provide to the Holder hereof the interest
rate hereon then in effect and, if determined, the interest rate which will
become effective as of the next Interest Reset Date.
3. Unless otherwise specified on the face hereof, payments in U.S. Dollars
of interest (other than interest payable at Maturity) will be made by mailing a
check to the Holder at the address of the Holder appearing on the Security
Register (as defined in the Indenture) on the applicable Record Date.
Notwithstanding the foregoing, a Holder of U.S. $10,000,000 or more in
aggregate principal amount of Notes of like tenor and terms (or a Holder of the
equivalent thereof in a specified Currency other than U.S. Dollars as
determined by the Exchange Rate Agent on the basis of the Market Exchange Rate
(as defined below)) shall be entitled to receive such payments in U.S. Dollars
by wire transfer of immediately available funds, but only if appropriate
payment instructions have been received in writing by the Paying Agent in The
City of New York on or prior to the Record Date relating to the applicable
Interest Payment
<PAGE> 26
12
Date. Simultaneously with the election by any Holder to receive payments of
principal and any premium and/or interest in the Specified Currency (if other
than U.S. Dollars), such Holder shall provide appropriate payment instructions
to such Paying Agent, and all such payments will be made in immediately
available funds to an account maintained by the payee with a bank located
outside the United States. Principal and any premium and interest payable at
Maturity will be paid in immediately available funds upon surrender of such
Note at the office of the Paying Agent in the City of New York or at such other
office or agency as the Company may designate.
4. If specified on the face hereof, this Note may be redeemed, as a whole
or from time to time in part, at the option of the Company, on not less than 30
nor more than 60 days' notice given as provided in the Indenture, on any
Redemption Date(s) and at the related Redemption Price(s) set forth on the face
hereof. The Redemption Price(s) are expressed as a percentage of the principal
amount of this Note. If less than all the outstanding Notes of like tenor and
terms are to be redeemed, the particular Notes to be redeemed shall be selected
by the Trustee not more than 60 days prior to the Redemption Date from the
outstanding Notes of like tenor and terms not previously called for redemption.
Such selection shall be of principal amounts equal to the minimum authorized
denomination for such Notes or any integral multiple thereof. Subject to the
immediately preceding sentence, such selection shall be made by any method as
the Trustee deems fair and appropriate. The notice of such redemption shall
specify which Notes are to be redeemed. In the event of redemption of this
Note in part only, a new Note or Notes of this series of like tenor and terms
for the unredeemed portion hereof will be issued to the Holder hereof upon the
cancelation hereof.
5. If specified on the face hereof, this Note will be subject to repayment
at the option of the Holder hereof on the Repayment Date(s) and at the related
Repayment Price(s) set forth on the face hereof. The Repayment Price(s) are
expressed as a percentage of the principal amount of this Note. If no such
Repayment Date is set forth on the face hereof, this Note may not be so repaid.
On each Repayment Date, if any, this Note shall be repayable in whole or in
part at the option of the Holder hereof at the applicable Repayment Price set
forth on the face hereof, together with accrued interest thereon to the date of
repayment. For this Note to be repaid in whole or in part
<PAGE> 27
13
at the option of the Holder hereof, the Paying Agent in the City of New York
must receive not less than 30 nor more than 45 days prior to the Repayment Date
(i) the Note with the form entitled "Option to Elect Repayment" below duly
completed or (ii) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth the name of the Holder of the Note, the
principal amount of the Note, the certificate number of the Note or a
description of the Note's tenor and terms, the principal amount of the Note to
be repaid, a statement that the option to elect repayment is being exercised
thereby and, if applicable, a guarantee that the Note to be repaid with the
form entitled "Option to Elect Repayment" duly completed will be received by
such Paying Agent not later than five Business Days after the date of such
telegram, telex, facsimile transmission or letter and such Note and form duly
completed are received by such Paying Agent by such fifth Business Day.
Exercise of such repayment option shall be irrevocable. Such option may be
exercised by the Holder for less than that entire principal amount provided
that the principal amount remaining outstanding after repayment is an
authorized denomination.
6. If the Specified Currency is other than U.S. Dollars, unless the Holder
has elected otherwise, payment in respect of this Note shall be made in U.S.
Dollars as determined by the Exchange Rate Agent (initially, Chemical Bank)
appointed by the Company based on the highest firm bid quotation for U.S.
Dollars received by such Exchange Rate Agent at approximately 11:00 a.m. New
York City time on the second Business Day preceding the applicable payment date
(or if no such rate is quoted on such date the last date on which such rate was
quoted), from three recognized foreign exchange dealers in the The City of New
York selected by the Exchange Rate Agent (one of which may be the Exchange Rate
Agent) for the purchase by the quoting dealer for settlement on such payment
date of the aggregate amount of the Specified Currency payable on such payment
date in respect of all Notes denominated or payable in such Specified Currency
and scheduled to receive U.S. dollar payments on such date. All currency
exchange costs will be borne by the Holders of such Notes by deductions from
such payments. If no such bid quotations are available, payments will be made
in the Specified Currency unless such Specified Currency is unavailable due to
the imposition of exchange controls or to other
<PAGE> 28
14
circumstances beyond the Company's control, in which case the Company will be
entitled to make payments in respect hereof in U.S. Dollars as provided below.
Except as set forth below, if payment on a Note is required to be made in a
Specified Currency other than U.S. Dollars and such currency is unavailable due
to the imposition of exchange controls or is no longer used by the government
of the country issuing such currency or for the settlement of transactions by
public institutions of or within the international banking community, then all
payments due on that due date with respect to such Note shall be made in U.S.
Dollars. The amounts so payable on any date in such Specified Currency shall
be converted into U.S. Dollars at a rate determined by the Exchange Rate Agent
on the basis of the noon buying rate in The City of New York for cable
transfers in the Specified Currency as certified for customs purposes by the
Federal Reserve Bank of New York (the "Market Exchange Rate), on the date of
such payment. in the event such Market Exchange Rate is not then available, the
Company will be entitled to make payments in U.S. dollars (i) if such Specified
Currency is not a composite currency, on the basis of the most recently
available Market Exchange Rate for such Specified Currency or (ii) if such
specified Currency is a composite currency, in an amount determined by the
Exchange Rate Agent to be the sum of the results obtained by multiplying the
number of units of each component currency of such composite currency, as of
the most recent date on which such composite currency was used, by the Market
Exchange Rate for such component currency on the second Business Day prior to
such Payment date (or if such Market Exchange Rate is not then available, by
the most recently available Market Exchange Rate for such component currency) .
If payment on a Note is required to be made in ECU and ECU are unavailable
due to the imposition of exchange controls or to other circumstances beyond the
Company's control or is no longer used in the European Monetary System, then
all payments due on that due date with respect to such Note shall be made in
U.S. Dollars. The amount so payable on any date in ECU shall be converted into
U.S. Dollars at a rate determined by the Exchange Rate Agent as of the second
Business Day prior to the date on which such payment is due on the following
basis.
The component currencies of the ECU for this purpose (the "Components") shall
be the currency amounts
<PAGE> 29
15
which were components of the ECU as of the last date on which the ECU was used
in the European Monetary System. The equivalent of the ECU in U.S. Dollars
shall be calculated by aggregating the U.S. Dollar equivalents of the
Components.
The U.S. Dollar equivalent of each of the Components shall be determined by
the Exchange Rate Agent on the basis of the most recently available Market
Exchange Rate for such Component or as otherwise specified by the Company.
If the official unit of any component currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
shall be divided or multiplied in the same proportion. If two or more
component currencies are consolidated into a single currency, the amounts of
those currencies as Components shall be replaced by an amount in such single
currency equal to the sum of the amounts of the consolidated component
currencies expressed in such single currency. If any component currency is
divided into two or more currencies, the amount of that currency as a Component
shall be replaced by amounts of such two or more currencies, each of which
shall have a value at the time of the division equal to the amount of the
former component currency divided by the number of currencies into which that
currency was divided.
All determinations referred to above of the Exchange Rate Agent shall be at
its sole discretion (except to the extent expressly provided herein that any
determination is subject to approval by the Company) and, in the absence of
manifest error, shall be conclusive for all purposes and binding upon the
Holders of the Notes and the Trustee and the Exchange Rate Agent shall have no
liability therefore.
7. If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all of the Notes may be declared due and payable
in the manner and with the effect provided in the Indenture. If the principal
of any original Issue Discount Note is declared to be due and payable the
amount of principal due and payable with respect to such Note shall be limited
to the sum of the principal amount of such Note multiplied by the Issue Price
(expressed as a percentage of such principal amount) plus the original issue
discount accrued from the date of issue to the date of declaration, which
accrual shall be calculated using the "interest method" (computed in accordance
<PAGE> 30
16
with generally accepted accounting principles) in effect on the date of
declaration. An Original Issue Discount Note is a Note, including any
zero-coupon Note, which has a stated redemption price at maturity that exceeds
its Issue Price by at least 0.25% of its Principal Amount, multiplied by the
number of full years from the Original Issue Date to the Maturity Date for such
Note and any other Note designated by the Company as issued with original issue
discount for United States Federal income tax purposes. If the principal of
any Dual Currency Note is declared to be due and payable, the amount of
principal due and payable with respect to such Note shall be equal to the Face
Amount specified on the front of such Note (the "Face Amount") plus accrued
interest to, but excluding the date such Note is declared due and payable minus
the Total Option Value (as defined below and as calculated on the date such
Note is declared due and payable by the Option Value Calculation Agent
specified on the front of such Note (the "Option Value Calculation Agent"))
multiplied by a fraction, the numerator of which is the Face Amount of such
Note and the denominator of which is the Aggregate Face Amount of all Notes of
such issuance; provided that such principal amount shall in no event be less
than zero. As used herein: (i) the term "Option Value" means, as of any date
of calculation, with respect to any Interest Payment Date of such Dual Currency
Note, the amount calculated by the Option Value Calculation Agent to be the
arithmetic average of the prices quoted on the date of such calculation by
three reference banks (which banks shall be selected by the Option Value
Calculation Agent and shall be reasonably acceptable to the Company) for the
right on the Option Election Date immediately preceding such interest payment
Date to purchase for value on such Interest Payment Date from such reference
banks (A) the aggregate amount of the Face Amount Currency specified on the
front of such Note (the "Face Amount Currency") due on such Interest Payment
Date with respect to all of the Notes of such issuance in exchange for (B) the
amount of the Optional Payment Currency specified on the front of such Note
(the "Optional Payment Currency") that would be received if the amount in
clause (A) were converted into the Optional Payment Currency at the Designated
Exchange Rate specified on such Note and (ii) the term "Total Option Value"
means, as of any date of such calculation, the sum of the Option Values
(calculated as of such date by the Option Value Calculation Agent) for all
Interest Payment Dates occurring after the date of calculation up to and
including the Maturity Date specified on the front of such Note.
<PAGE> 31
17
8. The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of not less than a
majority in principal amount of the Securities at the time outstanding of all
series to be affected thereby (voting as one class). The Indenture also
contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities of a series (or, in certain cases,
all series) at the time Outstanding, on behalf of the Holders of all Securities
of such series (or, in such cases, all series), to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof, whether or not notation of such consent
or waiver is made upon this Note.
9. No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the times, place and rate, and in the coin or currency, herein and in the
Indenture prescribed.
10. The authorized denominations of Notes denominated in U.S. Dollars will
be U.S. $100,000 and any larger amount that is an integral multiple of U.S.
$1,000. The authorized denominations of Notes denominated in a currency other
than U.S. Dollars will be as set forth on the face hereof.
11. As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of a Note is registerable in the Security Register for
this series (initially Chemical Bank in The City of New York). Every Note
presented for registration of transfer shall (if so required by the Company or
the Trustee) be duly endorsed, or accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee and the Security
Registrar for such series duly executed, by the Holder hereof or its attorney
duly authorized in writing. One or more new Notes of like tenor and terms of
authorized denominations and for the same aggregate principal amount,
<PAGE> 32
18
will be issued in the name or names of the designated transferee or transferees
and delivered at the office of the Security Registrar in The City of New York,
or mailed, at the request, risk and expense of the transferee or transferees,
to the address or addresses shown in the Security Register for such transferee
or transferees.
The Company shall not be required (i) to issue, register the transfer of or
exchange Notes to be redeemed for a period of 15 days preceding the date of the
mailing of the notice of redemption, or (ii) to register the transfer of or to
exchange any such Note or portion thereof selected for redemption, except the
unredeemed portion of any such Note being redeemed in part.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. Prior to due
presentment of a Note for registration of transfer, the Company, the Trustee
and any agent of the company or the Trustee may treat the person in whose name
a Note is registered as the absolute owner hereof for all purposes whether or
not such Note be overdue and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
12. The provisions of Section 1301 of the Indenture shall not be applicable
to the Notes.
13. Unless otherwise defined herein, all terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
14. The Indenture, the Notes and any coupons appertaining hereto shall be
construed in accordance with and governed by the laws of the State of New York.
<PAGE> 33
19
____________________
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion hereof specified below) pursuant to its terms
at a price equal to the applicable Repayment Price thereof together with
interest to the Repayment Date, to the undersigned ___________________________
_______________________________________________________________________________
______________ (Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be repaid,
specify the portion thereof which the Holder elects to have repaid ;
and specify the denomination or denominations (which shall be in authorized
denominations) of the Notes to be issued to the Holder for the portion of the
within Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid):
___________________________________________________________.
Date: __________________ ____________________________
(Signature)
<PAGE> 34
20
____________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT--__________ Custodian__________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used
though not in the above list.
_____________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
____________________
:
:
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE _______________________________________ the within Security and all
rights thereunder, hereby irrevocably constituting and appointing
____________________ attorney to transfer said Security on the books of the
Company, with full power of substitution in the premises.
<PAGE> 35
21
Dated: _________________ ______________________________
Signature
(Signature must correspond with
the name as written upon the
face of the within instrument
in every particular, without
alteration or enlargement or
any change whatever.)
