Registration Statement No. 333-0791
Post-Effective Amendment No. 1 to Registration Statement No. 33-44661
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
PRE-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT NO. 333-0791
AND
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT NO. 33-44661
UNDER THE SECURITIES ACT OF 1933
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POLAROID CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 04-1734655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
549 Technology Square
Cambridge, MA 02139
(617) 386-2000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
Thomas M. Lemberg, Esq.
Senior Vice President, General Counsel and Secretary
Polaroid Corporation
549 Technology Square
Cambridge, MA 02139
(617) 386-3228
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to the public:
From time to time after the Registration Statement becomes effective as
determined by market conditions and other factors.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [ x ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ x ]
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CALCULATION OF REGISTRATION FEE
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Title of | Amount | Proposed | Proposed | Amount of
Each Class of | to be | Maximum | Maximum | Registration
Securities | Registered | Offering Per| Aggregate Offering| Fee (C) (D)
to be | (A) | Security (B)| Price (A) (B) |
Registered | | | |
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Debt | | | |
Securities |$400,000,000| 100% | $400,000,000 | $129,327
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(A) The initial public offering price of any Debt Securities denominated in
any foreign currencies or currency units shall be the U.S. dollar
equivalent thereof based on the prevailing exchange rates at the
respective times such Debt Securities are first offered. For Debt
Securities issued with an original issue discount, the amount to be
registered is calculated as the initial accreted value of such Debt
Securities.
(B) Estimated solely for the purpose of calculating the registration fee.
(C) Of this amount, $66,937 was paid on February 8, 1996.
(D) In accordance with Rule 429 under the Securities Act of 1933, the
Prospectus included herein is a combined prospectus which also relates
to the Registrant's Registration Statement on Form S-3, File
No. 33-44661 (the "Prior Registration Statement"). This Registration
Statement, which is the first pre-effective amendment to a new
registration statement, also constitutes the first post-effective
amendment to the Prior Registration Statement. The amount of securities
eligible to be sold under the Prior Registration Statement ($100,000,000
as of November 1, 1996) shall be carried forward and the amount of the
filing fee associated with such securities that was previously paid with
the Prior Registration Statement is $31,250. Such post-effective
amendment shall hereafter become effective concurrently with the
effectiveness of this Registration Statement in accordance with
Section 8(a) of the Securities Act of 1933.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may determine.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY OFFER OR SALE OF
THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD
BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 21, 1996
POLAROID CORPORATION
$500,000,000
DEBT SECURITIES
Polaroid Corporation (the "Company") may offer from time to time its
unsecured debt securities consisting of notes, debentures or other evidences
of indebtedness (the "Debt Securities") at an aggregate initial offering
price of not more than $500,000,000 or, if applicable, the equivalent thereof
in one or more foreign currencies or currency units. The Debt Securities may
be offered as separate series in amounts, at prices and on terms to be
determined in light of market conditions at the time of sale and set forth in
a Prospectus Supplement or Prospectus Supplements.
The terms of each series of Debt Securities, including, where applicable,
the specific designation, aggregate principal amount, authorized
denominations, maturity, rate or rates (or method of calculation) and time
or times of payment of any interest, any terms for optional or mandatory
redemption or early payment or payment of additional amounts or any sinking
fund provisions, the currency or currencies or currency unit or currency
units in which principal, premium, if any, or interest, if any, is payable,
any initial public offering price, the proceeds to the Company and any other
specific terms in connection with the offering and sale of such series and
any listing on a securities exchange will be set forth in a Prospectus
Supplement or Prospectus Supplements. Debt Securities may be issued with
amounts payable in respect of principal of or any premium or interest on the
Debt Securities determined by reference to the value, rate or price of one or
more specified indices.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
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The Debt Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. See
"Plan of Distribution". If any agents of the Company or any underwriters are
involved in the sale of any Debt Securities in respect of which this
Prospectus is being delivered, the names of such agents or underwriters and
any applicable commissions or discounts will be set forth in a Prospectus
Supplement.
This Prospectus may not be used to consummate sales of securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is ________________, 1996
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the following
Regional Offices of the Commission: Northeast Regional Office, 7 World Trade
Center, Suite 1300, New York, New York 10048; and Midwest Regional Office,
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can also be obtained by mail from
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Common Stock of the Company
is listed on the New York Stock Exchange and such reports, proxy statements
and other information can also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005. The Registration
Statement has been, and amendments thereto will be, filed with the Commission
through the Electronic Data Gathering, Analysis and Retrieval ("EDGAR")
system. Registration statements, reports, proxy statements and other
information filed through the EDGAR system with respect to the Company are
publicly available through the Commission's Web site (http://www.sec.gov).
The Company has filed with the Commission a Registration Statement on
Form S-3 (which also constitutes a post-effective amendment to an earlier
Registration Statement on Form S-3 relating to a portion of the Debt
Securities offered hereby) (herein together with all amendments and exhibits
thereto, called the "Registration Statement") under the Securities Act with
respect to the securities offered by this Prospectus. This Prospectus does
not contain all of the information set forth or incorporated by reference in
the Registration Statement and the exhibits and schedules relating thereto,
certain portions of which have been omitted as permitted by the rules and
regulations of the Commission. For further information with respect to the
Company and the securities offered by this Prospectus, reference is made to
the Registration Statement and the exhibits filed or incorporated as a part
thereof, which are on file at the offices of the Commission and may be
obtained upon payment of the fee prescribed by the Commission or may be
examined without charge at the offices of the Commission. Statements
contained in this Prospectus as to the contents of any documents referred to
are not necessarily complete, and, in each such instance, are qualified in
all respects by reference to the applicable documents filed with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are hereby
incorporated by reference into this Prospectus:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, dated March 19, 1996;
(b) the Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1996, dated May 13, 1996;
(c) the Company's Quarterly Report on Form 10-Q for the quarterly period
ended June 30, 1996, dated August 8, 1996;
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(d) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended September 29, 1996, dated November 12, 1996;
(e) the Company's Current Report on Form 8-K, dated January 16, 1996;
(f) the Company's Current Report on Form 8-K, dated February 8, 1996;
and
(g) the Company's Current Report on Form 8-K, dated July 19, 1996.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the
offering of securities hereunder shall be deemed to be incorporated by
reference in this Prospectus and to be a part of this Prospectus from the
date of the filing thereof. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, at the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated by reference in this Prospectus
(other than certain exhibits). Requests for such copies should be directed
to: Polaroid Corporation, 549 Technology Square, Cambridge, MA 02139,
Attention: Thomas M. Lemberg, Esq., telephone (617) 386-2000.
THE COMPANY
The Company designs, manufactures and markets worldwide a variety of
products primarily in instant image recording fields. These include instant
photographic cameras and films, electronic imaging recording devices,
conventional films and light polarizing filters and lenses. The principal
products of the Company are used in amateur and professional photography,
industry, science, medicine and education.
The Company's principal executive offices are located at 549 Technology
Square, Cambridge, MA 02139. The Company's telephone number is (617) 386-
2000. References herein to the Company shall mean Polaroid Corporation and
its subsidiaries, unless the context requires otherwise.
FACTORS THAT MAY AFFECT FUTURE RESULTS
From time to time, information and statements provided by the Company may
contain "forward-looking statements" as defined by the Private Securities
Litigation Reform Act of 1995 (the "Act"). The Company desires to take
advantage of the "safe harbor" provisions of the Act. The Company therefore
cautions investors that actual results may differ materially from those
projected or suggested in any forward-looking statement as the result of a
wide variety of factors, which include but are not limited to the factors and
conditions set forth below. Many of the important factors below have been
discussed in the documents filed by the Company with the Commission that are
incorporated by reference into this Prospectus. See "Incorporation of
Certain Documents by Reference".
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The Company sells and markets its products worldwide. The worldwide market
for imaging products, particularly products in electronic and medical
imaging, is highly competitive in price, quality, service and product
performance. The Company has competitors worldwide, ranging from large
corporations to smaller and more specialized companies. The most significant
competitors, Eastman Kodak Company and Fuji Photo Film Co., Ltd., are
considerably larger than the Company and thus have more resources. The
impact of these factors can cause varied results.
The Company is affected by retail demand for its products, particularly in
the United States and Europe. Additional factors including fluctuation of
foreign exchange rates, economic factors, political activity, changes in laws
and regulations, particularly in the environmental arena, could affect the
Company's results of operations. The Company believes that developing
markets, such as Russia and China, in total present particularly attractive
opportunities. However, such markets tend to be considerably less stable
than more established markets and there can be no assurance that developing
markets will produce favorable results for the Company. For the first nine
months of 1996, sales in Russia have declined and cannot be predicted with
any certainty.
The Company anticipates that price competition from conventional film
and other imaging technologies will place continued pressure on instant
products. Furthermore, the profits of the Company's instant photography
business have generally derived from the sale of the film, not from the sale
of the cameras.
The Company is continuing to develop digital imaging products for
photographic, medical and graphic arts applications, but the large
development costs have produced ongoing losses. The profits of the Company's
basic instant photography business have been higher than the Company's total
profit from operations due to the operating losses of these digital imaging
businesses. Markets for digital imaging products are increasing rapidly and
over time may erode either the growth or the absolute size of the Company's
instant photography business. The markets for digital imaging products are
highly competitive and there is no assurance that the Company will attain the
level of success in these markets that it has achieved with respect to
instant photography. Included in the digital imaging losses are costs
associated with the Company's new coating facility which was brought on-line
in 1994 and is operating at low levels of production capacity manufacturing
Helios film. The Company is consolidating its coating facilities, shifting
capacity from some of its oldest to its newer, more efficient facilities.
The timing and impact of this consolidation are uncertain. The future
prospects of the Company's digital imaging businesses are uncertain and they
are likely to continue to affect the Company's financial results adversely
for the next few years. The Company's ability to reduce its digital imaging
losses is also dependent on its ability to develop new products in a timely
manner and to market them effectively. The Company continues to study the
different areas of its businesses, including their cost structures, and is
exploring prospects for aligning itself in various business relationships to
improve financial results.
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RATIOS OF EARNINGS TO FIXED CHARGES
During the past five years, there has been some reduction in the Company's
coverage ratios as set forth in the following table:
Year Ended December 31 Nine Months
----------------------------------- ended
September 29,
1991 1992 1993 1994 1995 1996
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Ratio of Earnings
to Fixed
Charges (a) 15.5(b) 3.0 2.3(c) 3.3 --(d) 1.1(e)
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(a) The ratio of earnings to fixed charges has been computed by dividing
earnings available for fixed charges (earnings/(loss) before income
taxes and cumulative effect of changes in accounting principles plus
fixed charges (excluding capitalized interest)) by fixed charges. Fixed
charges consist of interest expense (including amortization of deferred
financing costs), the portion of rental expense that is representative
of the interest factor (deemed by the Company to be one-third) and
capitalized interest.
(b) In 1991 the Company received a pre-tax litigation settlement of
$924.5 million. Excluding the settlement, the ratio of earnings to
fixed charges was 3.1.
(c) In 1993 the Company recorded a pre-tax special charge for restructuring
and other expenses of $44.0 million. Excluding the pre-tax special
charge, the ratio of earnings to fixed charges was 2.9.
(d) Earnings were insufficient to cover fixed charges by $206.2 million
after giving effect to the pre-tax special charge for restructuring and
other expenses of $247.0 million. Excluding the pre-tax special charge,
the ratio of earnings to fixed charges was 1.6.
(e) In the first nine months of 1996, the Company recorded a pre-tax special
charge for restructuring and other expenses of $110.0 million.
Excluding the pre-tax special charge, the ratio of earnings to fixed
charges was 3.5.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities
for general corporate purposes, which may include capital expenditures,
possible acquisitions, repurchase of the Company's stock, payment of other
debt and such other purposes as may be stated in any Prospectus Supplement.
The Company expects that it will, on a recurring basis, engage in
additional financings in character and amount to be determined as the need
arises.
DESCRIPTION OF THE DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the "Indenture")
to be entered into between the Company and State Street Bank and Trust
Company, as Trustee (the "Trustee"), the form of which is filed as an exhibit
to the Registration Statement of which this Prospectus is a part. The Debt
Securities may be issued from time to time in one or more series. The
particular terms of each series, or of Debt Securities forming a part of a
series, which are offered by a Prospectus Supplement, will be described in
such Prospectus Supplement. The following statements are subject to the
detailed provisions of the Indenture; whenever particular provisions of the
Indenture are referred to, such provisions are incorporated by reference as a
part of the statement made, and the statement is qualified in its entirety by
such reference. Whenever a defined term is referred to and not defined under
"Description of the Debt Securities", the definition thereof is contained in
the Indenture.
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General
The Indenture provides for the issuance from time to time of Debt
Securities in an unlimited aggregate principal amount and an unlimited number
of series.
The Debt Securities are unsecured and will rank pari passu with all other
unsecured and nonsubordinated debt of the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the series of Debt Securities offered thereby: (i) the title of the
Debt Securities of such series; (ii) any limit upon the aggregate principal
amount of such Debt Securities; (iii) the person to whom the interest on a
Debt Security of any series will be payable if not the person in whose name
that Debt Security is registered on the regular record date; (iv) the date or
dates on which such Debt Securities will mature or the method of
determination of such date or dates; (v) the rate or rates, or the method of
determination thereof, at which such Debt Securities will bear interest, if
any, the date or dates from which such interest will accrue, the date or
dates such interest will be payable and, for Registered Debt Securities (as
defined below), the Regular Record Dates; (vi) the place or places where the
principal of, premium, if any, and interest, if any, on, such Debt
Securities will be payable; (vii) the periods, prices and terms and
conditions upon which any such Debt Security may be redeemed, in whole or in
part, at the option of the Company; (viii) any terms for redemption or
repurchase pursuant to any sinking fund or analogous provision or at the
option of a Holder; (ix) any terms for conversion of the Debt Securities into
other securities of the Company or any other corporation at the option of a
holder; (x) any terms for the attachment to such Debt Securities of warrants,
options or other rights to purchase or sell stock or other securities of the
Company; (xi) if other than the principal amount thereof, the portion of the
principal amount of such Debt Securities that will be payable upon
acceleration of maturity (Debt Securities subject to such provisions being
referred to as "Original Issue Discount Securities"); (xii) any deletions or
modifications of, or additions to, the Events of Default or covenants of the
Company under the Indenture with respect to such Debt Securities (including
whether the covenants described below under "Certain Covenants of the
Company" will not apply to such Debt Securities); (xiii) if other than U.S.
dollars, the currency, currencies or currency unit or units in which such
Debt Securities will be denominated and in which the principal of, premium,
if any, and interest, if any, on, such Debt Securities will be payable;
(xiv) whether, and the terms and conditions on which, the Company or a Holder
may elect that, or the other circumstances under which, payment of principal
of, premium, if any, or interest, if any, on, such Debt Securities is to be
made in a currency or currencies or currency unit or units other than that in
which such Debt Securities are denominated; (xv) any manner of determining
the amount of principal of, premium, if any, or interest, if any, on, any
such Debt Securities to be determined with reference to an index based on a
currency or currency unit or units other than that in which such Debt
Securities are stated to be payable or an index based on any other method;
(xvi) whether such Debt Securities will be issued in fully registered form
without coupons ("Registered Debt Securities") or in bearer form with or
without coupons ("Bearer Debt Securities"), or any combination thereof,
whether such Debt Securities will be issued in the form of one or more global
securities (each a "Global Debt Security") and whether such Debt Securities
are to be issuable in temporary global form or definitive global form;
(xvii) if such Debt Securities are to be issued upon the exercise of
warrants, the time, manner and place for such Debt Securities to be
authenticated and delivered; (xviii) whether and under what circumstances the
Company will pay additional amounts to any holder of such Debt Securities who
is not a United States person (as defined below under "Temporary Global
Securities") in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether and on what terms the Company will
have the option to redeem such Debt Securities rather than pay any additional
amounts; and (xix) any other terms of any of such Debt Securities not
inconsistent with the Indenture. (Sections 202 and 301)
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Unless otherwise specified in the applicable Prospectus Supplement, (x) the
Debt Securities will be Registered Debt Securities and (y) Debt Securities
denominated in U.S. dollars will be issued, in the case of Registered Debt
Securities, in denominations of $1,000 or an integral multiple thereof and,
in the case of Bearer Debt Securities, in denominations of $5,000. Debt
Securities may bear legends required by United States Federal tax law and
regulations. (Section 401)
If any of the Debt Securities are sold for any foreign currency or currency
unit or if the principal of, or premium, if any, or interest, if any, on, any
of the Debt Securities is payable in any foreign currency or currency unit,
the restrictions, elections, tax consequences, specific terms and other
information with respect to such Debt Securities and such foreign currency or
currency unit will be set forth in the Prospectus Supplement relating
thereto.
Certain Covenants of the Company
Certain Definitions Applicable to Covenants
The term "Subsidiary" of the Company will be defined in the Indenture as a
corporation at least a majority of whose outstanding Voting Stock shall at
the time be owned, directly or indirectly, by the Company and/or one or more
Subsidiaries of the Company.
The term "Restricted Subsidiary" will be defined as a Subsidiary of the
Company substantially all the property of which is located, or substantially
all of the business of which is carried on, within the United States of
America and which owns a Principal Property, excluding, however, a Subsidiary
of the Company which is primarily engaged in (a) the development and sale or
financing of real property or (b) financing, or assisting in financing, the
acquisition or disposition of products of the Company or a Subsidiary by
dealers, distributors or customers.
The term "Principal Property" will be defined as any real estate or any
manufacturing or processing plant or warehouse owned or leased by the Company
or by any Restricted Subsidiary which is located within the United States of
America and the gross book value of which (without deduction of any
depreciation reserves) on the date as which the determination is being made
exceeds 2% of Consolidated Net Tangible Assets, other than (a) properties
which in the opinion of the Board of Directors are not of material importance
to the Company's business as an entirety or (b) any portion of any particular
property which is found by the Board of Directors not to be of material
importance to the use or operation of such property.
The term "Attributable Debt" will be defined as the total net amount of
rent required to be paid during the remaining term of certain leases,
discounted at the rate per annum borne by the relevant Debt Securities.
The term "Consolidated Net Tangible Assets" will be defined as the total
assets (less applicable reserves and other properly deductible items) on the
balance sheet of the Company, less (a) all current liabilities and
(b) goodwill, trade names, trademarks, patents, organization expenses and
other like intangibles of the Company and its consolidated Subsidiaries.
(Section 101)
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Restrictions on Secured Debt
If the Company or any Restricted Subsidiary shall incur or guarantee any
indebtedness for money borrowed ("Debt") secured by a mortgage, pledge or
lien ("Mortgage") on any Principal Property of the Company or of any
Restricted Subsidiary, or on any shares of stock or Debt of any Restricted
Subsidiary, the Company will secure or cause such Restricted Subsidiary to
secure the Debt Securities equally and ratably with (or, at the Company's
option, prior to) such secured Debt, unless the aggregate amount of all such
secured Debt, together with all Attributable Debt of the Company and its
Restricted Subsidiaries with respect to sale and leaseback transactions
involving Principal Properties (with the exception of such transactions which
are excluded as described in "Restrictions on Sales and Leasebacks" below),
would not exceed 10% of Consolidated Net Tangible Assets. (Section 1104)
The above restrictions will not apply to, and there will be excluded from
secured Debt in any computation under such restrictions, Debt secured by
(a) Mortgages on property of, or on any shares of stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary, (b) Mortgages in favor of the Company or a Restricted Subsidiary,
(c) Mortgages in favor of governmental bodies to secure progress or advance
payments, (d) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) and purchase money and construction Mortgages which are
entered into prior to, at the time of or within 180 days after the later of
acquisition or completion of construction, (e) Mortgages securing industrial
revenue or pollution control bonds, and (f) any extension, renewal or
refunding of any Mortgage referred to in the foregoing clauses (a) through
(e) inclusive; provided, that, any such extended, renewed or replaced
Mortgage shall be limited to the same property, stock or Debt that secured
the original Mortgage. (Section 1104)
Restrictions on Sales and Leasebacks
Neither the Company nor any Restricted Subsidiary may enter into any sale
and leaseback transaction involving any Principal Property, unless the
aggregate amount of all Attributable Debt with respect to such transactions
plus all Debt secured by Mortgages on Principal Properties (with the
exception of secured Debt which is excluded as described in "Restrictions on
Secured Debt" above) would not exceed 10% of Consolidated Net Tangible
Assets. (Section 1105)
The restrictions on sale and leaseback transactions will not apply to, and
there shall be excluded from Attributable Debt in any computation under such
restrictions, any sale and leaseback transaction if (a) the lease is for a
period, including renewal rights, of not in excess of three years, (b) the
sale or transfer of the Principal Property is made prior to, at the time of
or within 180 days after its acquisition or construction, (c) the lease
secures or relates to industrial revenue or pollution control bonds, (d) the
transaction is between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries or (e) the Company or such Restricted Subsidiary,
within 180 days after the sale or transfer is completed, applies to the
retirement of Funded Debt (including the Debt Securities) of the Company
ranking on a parity with or senior to all the Debt Securities, or Funded Debt
of a Restricted Subsidiary, or to the purchase of other property which will
constitute a Principal Property of a value at least equal to the value of the
Principal Property leased back, an amount not less than the greater of
(i) the net proceeds of the sale of the Principal Property leased back or
(ii) the fair market value of the Principal Property leased back. The amount
to be applied to the retirement of Funded Debt shall be reduced by the
principal amount of any debentures or notes constituting Funded Debt
(including the Debt Securities) of the Company or a Restricted Subsidiary
surrendered to the applicable trustee for cancellation within such 180-day
period or the principal amount of Funded Debt voluntarily retired within such
180-day period; provided, that, no retirement referred to in this sentence
may be effected by payment at maturity or pursuant to any mandatory
prepayment provision. (Section 1105)
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Event Risk
Except for the limitations on Secured Indebtedness and Sale and Leaseback
Transactions described above, the Indenture and Debt Securities do not
contain any covenants or other provisions designed to afford holders of the
Debt Securities protection in the event of a highly leveraged transaction
involving the Company.
Limitation on Merger, Consolidation and Certain Sales of Assets
The Company will covenant that it will not merge into or consolidate with
any other corporation, or convey or transfer its properties and assets
substantially as an entirety to, any person unless (a) the successor is a
U.S. corporation, (b) the successor assumes on the same terms and conditions
all the obligations under the Debt Securities and the Indenture and
(c) immediately after giving effect to the transaction, there is no default
under the Indenture. (Section 901) Upon any such merger, consolidation,
conveyance or transfer, the successor will succeed to, and will be
substituted in lieu of, the Company. (Section 902)
Exchange, Registration and Transfer
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate
principal amount and tenor of different authorized denominations. If Debt
Securities of any series are issuable as both Registered Debt Securities and
Bearer Debt Securities, the Bearer Debt Securities of such series (with all
unmatured coupons, except as provided below, and all matured coupons in
default) will be exchangeable for Registered Debt Securities of the same
series of any authorized denominations and of a like aggregate principal
amount and tenor. If a Bearer Debt Security with coupons appertaining
thereto is surrendered in exchange for a Registered Debt Security after a
Regular Record Date or Special Record Date and before the relevant date for
payment of interest, such Bearer Debt Security shall be surrendered without
the coupon relating to such date for payment of interest and interest will
not be payable on such date in respect of the Registered Debt Security issued
in exchange for such Bearer Debt Security, but will be payable only to the
holder of such coupon when due in accordance with the terms thereof and of
the Indenture. Bearer Debt Securities will not be issued in exchange for
Registered Debt Securities (unless otherwise specified in the applicable
Prospectus Supplement and permitted by applicable rules and regulations). No
service charge will be made for any transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge in connection therewith. (Section 404)
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities (other than Book-Entry Debt Securities (as defined
below under "Definitive Global Securities--U.S. Book-Entry Securities")) may
be presented for registration of transfer (with the form of transfer endorsed
thereon duly executed), at the office of the Security Registrar or at the
office of any additional transfer agent designated by the Company for such
purpose with respect to any series of Debt Securities and referred to in the
applicable Prospectus Supplement. (Sections 404 and 1102) The Trustee will
be the initial Security Registrar under the Indenture. State Street Bank and
Trust Company, N.A., an affiliate of the Trustee, with offices currently
located at 61 Broadway, Concourse Level, New York, New York 10006, will
initially be designated as the office or agency of the Company in the Borough
of Manhattan, The City of New York where Debt Securities may be presented for
registration of transfer or exchange. (Section 404) The Company may at any
time designate, or rescind the designation of, the Security Registrar or any
additional transfer agent or approve a change in the location through which
the Security Registrar or any such transfer agent acts, except that, if Debt
Securities of a series are issuable solely as Registered Debt Securities, the
Company will be required to maintain a transfer agent in each Place of
Payment for such series and, if Debt Securities of a series are issuable as
both Registered Debt Securities and Bearer Debt Securities or solely as
Bearer Debt Securities, the Company will be required to maintain (in addition
to the Security Registrar) a transfer agent in a Place of Payment for such
series located outside of the United States. The Company may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 1102)
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In the event of any redemption in part of any series of Debt Securities,
the Company will not be required to: (i) issue, register the transfer of, or
exchange, Debt Securities of any series during a period beginning at the
opening of business 15 Business Days before any selection of Debt Securities
of that series to be redeemed and ending at the close of business on (a) if
Debt Securities of the series are issuable only as Registered Debt
Securities, the day of mailing of the relevant notice of redemption and
(b) if Debt Securities of the series are issuable as Bearer Debt Securities,
the day of the first publication of the relevant notice of redemption or, if
Debt Securities of the series are also issuable as Registered Debt Securities
and there is no publication, the day of mailing of the relevant notice of
redemption; (ii) register the transfer of, or exchange, any Registered Debt
Security selected for redemption, in whole or in part, except the unredeemed
portion of any Registered Debt Security being redeemed in part; or
(iii) exchange any Bearer Debt Security selected for redemption, except to
exchange such Bearer Debt Security for a Registered Debt Security of that
series and of like tenor which is simultaneously surrendered for redemption.
(Section 404)
For a discussion of restrictions on the exchange, registration and transfer
of Global Debt Securities, see "Global Securities" below.
Payment and Paying Agents
Payment of principal of, premium, if any, and interest, if any, on,
Registered Debt Securities will be made in the designated currency or
currency unit at the office of such Paying Agent or Paying Agents as the
Company may designate from time to time. At the option of the Company,
payment of any interest on Registered Debt Securities may be made by check
mailed to the address of the person entitled thereto as such address shall
appear in the Security Register. Payment of any installment of interest on
any Registered Debt Security will be made to the person in whose name such
Registered Debt Security is registered at the close of business on the
Regular Record Date for such interest. (Sections 406 and 410.)
Payment of principal of, premium, if any, and interest, if any, on, Bearer
Debt Securities will be made in the designated currency unit at the offices
of such Paying Agents outside the United States as the Company may designate
(subject to any applicable laws) from time to time. On the applicable
payment date therefor, payments of principal of, and premium, if any, on,
Bearer Debt Securities will be made against surrender of such Debt
Securities, and payment of interest on Bearer Debt Securities with coupons
appertaining thereto on any Interest Payment Date will be made only against
surrender of the coupon relating to such Interest Payment Date.
(Sections 410 and 1102) No payment with respect to any Bearer Debt Security
will be made at any office or agency of the Company in the United States or
by check mailed to any address in the United States or by transfer to any
account maintained with a bank located in the United States. Notwithstanding
the foregoing, payments of principal of, premium, if any, and interest, if
any, on, Bearer Debt Securities denominated and payable in U.S. dollars will
be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount
thereof in U.S. dollars at all offices or agencies outside the United States
is illegal or effectively precluded by exchange controls or other similar
restrictions. (Section 1102)
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Unless otherwise indicated in the applicable Prospectus Supplement, the
Trustee will be designated as the Company's Paying Agent with respect to Debt
Securities, and the office of State Street Bank and Trust Company, N.A., an
affiliate of the Trustee, will be the office or agency of the Company in the
Borough of Manhattan, The City of New York where Debt Securities that are
issuable solely as Registered Debt Securities and Debt Securities (subject to
the limitations described above in the case of Bearer Debt Securities) that
are issuable solely as Bearer Debt Securities or as both Registered Debt
Securities and Bearer Debt Securities may be presented or surrendered for
payment. Any Paying Agents outside the United States and any other Paying
Agents in the United States initially designated by the Company for the Debt
Securities of a series will be named in the applicable Prospectus Supplement.
The Company may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent or approve a change in the office through
which any Paying Agent acts, except that, if Debt Securities of a series are
issuable solely as Registered Debt Securities, the Company will be required
to maintain a Paying Agent in each Place of Payment for such series and, if
Debt Securities of a series are issuable as both Registered Debt Securities
and Bearer Debt Securities or solely as Bearer Debt Securities, the Company
will be required to maintain (i) a Paying Agent in the Borough of Manhattan,
The City of New York for payments with respect to any Registered Debt
Securities of the series (and for payments with respect to Bearer Debt
Securities of the series in the circumstances described above, but not
otherwise), and (ii) a Paying Agent in a Place of Payment located outside the
United States where Debt Securities of such series and any coupons
appertaining thereto may be presented and surrendered for payment; provided
that if the Debt Securities of such series are listed on any stock exchange
located outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent in any required city located outside
the United States for the Debt Securities of such series. (Section 1102)
All moneys deposited with the Trustee or a Paying Agent, or then held by
the Company, in trust for the payment of principal of, premium, if any, and
interest, if any, on, any Debt Security or coupon that remains unclaimed at
the end of two years after such principal, premium or interest shall have
become due and payable will be repaid to the Company, or, if then held by the
Company, discharged from such trust, and the holder of such Debt Security or
coupon will thereafter look only to the Company for payment thereof.
(Section 1103)
Global Securities
The Debt Securities of a series may be issued in whole or in part as one or
more Global Debt Securities in either registered or bearer form and in either
temporary or definitive form. The Global Debt Security or Securities of a
series will be deposited with, or on behalf of, a depositary located in the
United States (a "U.S. Depositary") or a common depositary located outside
the United States (a "Common Depositary") identified in the Prospectus
Supplement relating to such series for the benefit of Euro-clear and CEDEL
S.A. for credit to the respective accounts of such beneficial owners of
interests in such Debt Securities. All temporary or definitive Global Debt
Securities in bearer form will be deposited with a Common Depositary.
(Section 403)
The specific terms of the depositary arrangement with respect to any Debt
Securities of a series issued in global form will be described in the
Prospectus Supplement relating to such series. None of the Company, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global Debt
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. (Section 411) The Company anticipates
that the following provisions will apply to all depositary arrangements with
a U.S. Depositary or Common Depositary.
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Temporary Global Securities
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series that are issuable as Bearer Debt
Securities initially will be represented by one or more temporary Global Debt
Securities, without interest coupons, to be deposited with a Common
Depositary in London for Morgan Guaranty Trust Company of New York, Brussels
Office, as operator of the Euro-clear System ("Euro-clear"), and CEDEL S.A.
("CEDEL") for credit to the respective accounts of the beneficial owners of
such Debt Securities (or to such other accounts as they may direct). On and
after the exchange date determined as provided in any such temporary Global
Debt Security and described in the applicable Prospectus Supplement, each
such temporary Global Debt Security will be exchangeable for definitive Debt
Securities in bearer form, registered form, definitive global bearer form of
any combination thereof, as specified in the applicable Prospectus
Supplement. No Bearer Debt Security (including a Debt Security in definitive
global bearer form) delivered in exchange for a portion of a temporary Global
Debt Security will be mailed or otherwise delivered to any location in the
United States in connection with such exchange. (Sections 402 and 403)
Unless otherwise specified in the applicable Prospectus Supplement,
interest on any portion of a temporary Global Debt Security payable in
respect of an Interest Payment Date occurring prior to the issuance of
definitive Debt Securities will be paid to each of Euro-clear and CEDEL with
respect to the portion of the temporary Global Debt Security held for its
account upon delivery to the Trustee of a certificate signed by Euro-clear or
CEDEL, as the case may be, in the form required by the Indenture dated no
earlier than such Interest Payment Date, which certificate must be based on
statements provided to it by its account holders who are beneficial owners of
interests in such temporary Global Debt Security in the form set forth in the
Indenture that such portion is not beneficially owned by a United States
person, and has not been acquired by or on behalf of a United States person
or for offer to resell or for resale to a United States person or any person
inside the United States or, if a beneficial interest in such portion has
been acquired by a United States person, (i) that such person is a financial
institution, as defined in applicable regulations promulgated under the
Internal Revenue Code of 1986, as amended (the "Code"), purchasing for its
own account or has acquired such Debt Security through a financial
institution and (ii) that such Debt Securities are held by a financial
institution that has agreed in writing to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Code and the regulations thereunder
and that it did not purchase for offer to resell or for resale inside the
United States. Each of Euro-clear and CEDEL will in such circumstances
credit the interest received by it in respect of such temporary Global Debt
Security to the accounts of the beneficial owners thereof (or to such other
accounts as they may direct). (Section 403)
As used herein, "United States person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or an estate or trust the
income of which is subject to United States Federal income taxation
regardless of its source, and "United States" means the United States of
America (including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction.
Definitive Global Securities
Bearer Securities. If any Debt Securities of a series are issuable in
definitive global bearer form, the applicable Prospectus Supplement will
describe the circumstances, if any, under which beneficial owners of
interests in any such definitive global Bearer Debt Security may exchange
such interests for Debt Securities of such series and of like tenor and
principal amount in any authorized form and denomination. No Bearer Debt
Security delivered in exchange for a portion of a definitive Global Debt
Security will be mailed or otherwise delivered to any location in the United
States in connection with such exchange. (Section 404) Principal of,
premium, if any, and interest, if any, on, a definitive global Bearer Debt
Security will be payable in the manner described in the applicable Prospectus
Supplement.
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Book-Entry Securities. If Debt Securities of a series are to be
represented by a definitive global Registered Debt Security to be deposited
with or on behalf of a U.S. Depositary, such Debt Securities ("Book-Entry
Debt Securities") will be represented by a definitive Global Debt Security
registered in the name of the U.S. Depositary or its nominee. Upon the
issuance of a definitive Global Debt Security registered in the name of the
U.S. Depositary, the U.S. Depositary will credit, on its book-entry
registration and transfer system, the respective principal amounts of the
Book-Entry Debt Securities represented by such Global Debt Security to the
accounts of institutions that have accounts with such depositary or its
nominee ("participants"). The accounts to be credited shall be designated by
the underwriters or agents for the sale of such Book-Entry Debt Securities or
by the Company, if such Debt Securities are offered and sold directly by the
Company. Ownership of Book-Entry Debt Securities will be limited to
participants or persons that may hold interests through participants.
Ownership of Book-Entry Debt Securities will be shown on, and the transfer of
that ownership will be effected only through, records maintained by the U.S.
Depositary or its nominee for the applicable definitive Global Debt Security
or by participants or persons that hold through participants. So long as the
U.S. Depositary, or its nominee, is the registered owner of such global Debt
Security, such depositary or such nominee, as the case may be, will be
considered the sole owner or holder of the Book-Entry Debt Securities
represented by such Global Debt Security for all purposes under the
Indenture. Payment of principal of, premium, if any, and interest, if any,
on, Book-Entry Debt Securities will be made to the U.S. Depositary or its
nominee, as the case may be, as the registered owner or the holder of the
Global Debt Security representing such Book-Entry Debt Securities. Owners of
Book-Entry Debt Securities will not be entitled to have such Debt Securities
registered in their names in the Security Register, will not receive or be
entitled to receive physical delivery of such Debt Securities in definitive
form and will not be considered the owners or holders thereof under the
Indenture. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form.
Such limits and such laws impair the ability to purchase or transfer Book-
Entry Debt Securities.
The Company expects that the U.S. Depositary for Book-Entry Debt Securities
of a series, upon receipt of any payment of principal of, premium, if any,
or interest, if any, on, the related definitive Global Debt Security, will
immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal
amount of such Global Debt Security as shown on the records of such U.S.
Depositary. The Company also expects that payments by participants to owners
of beneficial interests in such Global Debt Security held through such
participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name", and will be the
responsibility of such participants.
Satisfaction and Discharge; Defeasance
At the request of the Company, the Indenture will cease to be in effect as
to the Debt Securities of any series (except for certain obligations to
register the transfer or exchange of such Debt Securities and related
coupons, if any, and hold moneys for payment of such Debt Securities and
coupons in trust) when either (a) all such Debt Securities and coupons have
been delivered to the Trustee for cancellation or (b) all such Debt
Securities and coupons have become due and payable or will become due and
payable at their stated maturity within one year, or are to be called for
redemption within one year, and the Company has deposited with the trustee in
trust, money, in the currency, currencies or currency unit or units in which
such Debt Securities are payable, in an amount sufficient to pay all the
principal of, premium, if any, and interest, if any, on, such Debt Securities
on the dates such payments are due in accordance with the terms of such Debt
Securities. (Section 501)
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Unless otherwise specified in the applicable Prospectus Supplement, the
Company, at its option, (a) will be Discharged after 91 days from any and all
obligations in respect of any series of Debt Securities (except for certain
obligations to register the transfer of or exchange Debt Securities and
related coupons, replace stolen, lost or mutilated Debt Securities and
coupons, maintain paying agencies and hold moneys for payment in trust) or
(b) need not comply with certain restrictive covenants of the Indenture in
respect of such series (including those described under "Certain Covenants of
the Company"), in each case if the Company deposits irrevocably with the
trustee in trust, money, or, in the case of Debt Securities and coupons
denominated in U.S. dollars, U.S. Government Obligations or, in the case of
Debt Securities and coupons denominated in a foreign currency, Foreign
Government Securities, which through the payment of interest thereon and
principal thereof in accordance with their terms will provide money, in an
amount sufficient to pay in the currency or currencies or currency unit or
units in which such Debt Securities are payable all the principal (including
any mandatory sinking fund payments) of, and interest on, such series on the
dates such payments are due in accordance with the terms of such series.
Among the conditions to the Company's exercising any such option, the Company
is required to deliver to the Trustee an opinion of counsel to the effect
that the deposit and related defeasance would not cause the holders of such
series to recognize income, gain or loss for United States Federal income tax
purposes and that the holders of such series will be subject to United States
Federal income tax in the same amounts, in the same manner and at the same
times as would have been the case if such option had not been exercised.
(Section 503)
Events of Default, Notice and Waiver
The Indenture provides that, if an Event of Default specified therein with
respect to any series of Debt Securities shall have happened and be
continuing, either the Trustee or the holders of 25% in principal amount of
the outstanding Debt Securities of such series (in the case of certain events
of bankruptcy, insolvency and reorganization, voting as one class with all
other outstanding Debt Securities) may declare the principal of all the Debt
Securities of such series, together with accrued interest thereon, if any, to
be immediately due and payable by notice in writing to the Company (and to
the Trustee if given by the holders). (Section 602)
Events of Default in respect of any series are defined in the Indenture as
being: default for 30 days in payment of any interest installment when due;
default in payment of principal of, or premium, if any, on, Debt Securities
of such series when due (other than any sinking fund payments) at their
stated maturity, by declaration, when called for redemption or otherwise;
default in the making of any sinking fund payment when due; default for
90 days after notice to the Company by the Trustee or by holders of 25% in
principal amount of the outstanding Debt Securities of such series in the
performance of any covenant in the Debt Securities of such series or in the
Indenture with respect to Debt Securities of such series; certain events of
bankruptcy, insolvency and reorganization; and any other Event of Default
provided with respect to the Debt Securities of such series, if so specified
in the applicable Prospectus Supplement. No Event of Default with respect to
a single series of indebtedness issued under the Indenture (and any
supplemental indentures) necessarily constitutes an Event of Default with
respect to any other series of indebtedness issued thereunder. (Section 601)
A default under other indebtedness of the Company will not be a default
under the Indenture and a default under one series of Debt Securities will
not necessarily be a default under another series.
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The Indenture provides that the trustee will, within 90 days after the
occurrence of a default with respect to the Debt Securities of any series,
give to the holders of the Debt Securities of such series notice of all
uncured and unwaived defaults known to it; provided that, except in the case
of default in the payment of principal of, premium, if any, or interest, if
any, on, or a sinking fund installment, if any, with respect to, any of the
Debt Securities of such series, the Trustee will be protected in withholding
such notice if it in good faith determines that the withholding of such
notice is in the interest of the holders of the Debt Securities of such
series. The term "default" for the purpose of this provision only means the
happening of any of the Events of Default specified above, except that any
grace period or notice requirement is eliminated. (Section 702)
The Indenture contains provisions entitling the Trustee, subject to the
duty of the Trustee during an Event of Default to act with the required
standard of care, to be indemnified by the holders of the Debt Securities
before proceeding to exercise any right or power under the Indenture at the
request of holders of the Debt Securities. (Section 703)
The Indenture provides that the holders of a majority in principal amount
of the outstanding Debt Securities of any series may in certain circumstances
direct the time, method and place of conducting proceedings for remedies
available to the Trustee or exercising any trust or power conferred on the
Trustee in respect of such series; provided that the Trustee may decline to
follow any such direction if (i) such direction would involve the Trustee in
personal liability or (ii) such direction would be unduly prejudicial to
holders of the Debt Securities of such series not joining in such direction.
(Section 612)
The Indenture includes a covenant that the Company will file annually with
the Trustee an Officers' Certificate stating whether any default exists and
specifying any default that exists. (Section 1106)
In certain cases, the holders of a majority in principal amount of the
outstanding Debt Securities of any series may on behalf of the holders of all
Debt Securities of such series waive any past default or Event of Default
with respect to the Debt Securities of such series or compliance with certain
provisions of the Indenture, except a default (i) not theretofore cured in
payment of the principal of, premium, if any, or interest, if any, on, any of
the Debt Securities of such series; or (ii) in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of a series affected.
(Section 613) The holders of a majority in principal amount of a series of
outstanding Debt Securities also have certain rights to rescind any
declaration of acceleration with respect to such series after all Events of
Default with respect to such series not arising from such declaration shall
have been cured. (Section 602)
Modification of the Indenture
The Indenture provides that the Company and the Trustee thereunder may,
without the consent of any holders of Debt Securities, enter into
supplemental indentures for the purposes, among other things, of adding to
the Company's covenants, adding additional Events of Default, establishing
the form or terms of any series of Debt Securities issued under such
supplemental indentures or curing ambiguities or inconsistencies in the
Indenture or making other provisions, provided such other provisions shall
not adversely affect the interests of the holders of any series of Debt
Securities in any material respect. (Section 1001)
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The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in principal
amount of the outstanding Debt Securities of all affected series (acting as
one class), to execute supplemental indentures adding any provisions to or
changing or eliminating any of the provisions of the Indenture or modifying
the rights of the holders of the Debt Securities of such series, except that
no such supplemental indenture may, without the consent of the holders of all
the outstanding Debt Securities affected thereby, among other
things: (i) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Debt Security; (ii) reduce
the principal amount of, the rate of interest on, or any premium payable upon
the redemption of, any Debt Security; (iii) reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon acceleration of the Maturity thereof; (iv) change any Place of
Payment where, or the currency or currencies or currency unit or units in
which, any Debt Security or any premium or interest thereon is payable;
(v) impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); (vi) affect adversely the
terms, if any, of conversion of any Debt Security into stock or other
securities of the Company or of any other corporation; (vii) reduce the
percentage in principal amount of the outstanding Debt Securities of any
series, the consent of whose holders is required for any such supplemental
indenture, or the consent of whose holders is required for any waiver (of
compliance with certain provisions of the Indenture or certain defaults
thereunder and their consequences) provided for in the Indenture;
(viii) change any obligation of the Company, with respect to outstanding Debt
Securities of a series, to maintain an office or agency in the places and for
the purposes specified in the Indenture for such series; (ix) modify any of
the foregoing provisions or the provisions for the waiver of certain
covenants and defaults, except to increase any applicable percentage of the
aggregate principal amount of outstanding Debt Securities the consent of the
holders of which is required or to provide with respect to any particular
series the right to condition the effectiveness of any supplemental indenture
as to that series on the consent of the holders of a specified percentage of
the aggregate principal amount of outstanding Debt Securities of such series
or to provide that certain other provisions of the Indenture cannot be
modified or waived without the consent of the holder of each outstanding Debt
Security affected thereby. (Section 1002)
Waiver of Certain Covenants
The Indenture provides that the Company may omit to comply with the
restrictive covenants described above under "Certain Covenants of the
Company" if the holders of not less than a majority in principal amount of
all series of outstanding Debt Securities affected thereby (acting as one
class) waive compliance with such restrictive covenants. (Section 1107)
Meetings
The Indenture contains provisions for convening meetings of the holders of
Debt Securities of any series. (Section 1401) A meeting may be called at
any time by the Trustee under the Indenture, and also, upon request, by the
Company or the holders of at least 10% in principal amount of the outstanding
Debt Securities of such series, in any such case upon notice given in
accordance with "Notices" below. (Section 1402) Persons entitled to vote a
majority in principal amount of the outstanding Debt Securities of a series
will constitute a quorum at a meeting of holders of Debt Securities of such
series, except that in the absence of a quorum, if the meeting was called by
the Company or the Trustee, it may be adjourned for a period of not less than
10 days, and in the absence of a quorum at any such adjourned meeting, the
meeting may be further adjourned for a period of not less than 10 days.
Except for any consent which must be given by the holder of each outstanding
Debt Security affected thereby, as described above under "Modification of the
Indenture", and subject to the provisions described in the last sentence
under this subheading, any resolution presented at a meeting or adjourned
meeting duly reconvened at which a quorum is present may be adopted by the
affirmative vote of the holders of a majority in principal amount of the
outstanding Debt Securities of that series; provided, however, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which may be made, given or taken by
the holders of a specified percentage, which is equal to or less than a
majority, in principal amount of outstanding Debt Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened at which a
quorum is present by the affirmative vote of the holders of such specified
percentage in principal amount of the outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of holders of
Debt Securities of any series duly held in accordance with the Indenture will
be binding on all holders of Debt Securities of that series and the related
coupons. With respect to any consent, waiver or other action which the
Indenture expressly provides may be given by the holders of a specified
percentage of outstanding Debt Securities of all series affected thereby
(acting as one class), only the principal amount of outstanding Debt
Securities of any series represented at a meeting or an adjourned meeting
duly reconvened at which a quorum is present as aforesaid and voting in favor
of such action will be counted for purposes of calculating the aggregate
principal amount of outstanding Debt Securities of all series affected
thereby favoring such action. (Section 1404)
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Notices
Except as otherwise provided in the Indenture, notices to holders of Bearer
Debt Securities will be given by publication at least once in a daily
newspaper in The City of New York and in London and in such other city or
cities as may be specified in such Bearer Debt Securities and will be mailed
to such persons whose names and addresses were previously filed with the
Trustee, within the time prescribed for the giving of such notice. Notices
to holders of Registered Debt Securities will be given by first-class mail or
by overnight courier to the addresses of such holders as they appear in the
Security Register. (Section 106)
Title
Title to any Bearer Debt Securities and any coupons appertaining thereto
will pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Debt Security or related
coupon and, prior to due presentment for registration of transfer, the
registered owner of any Registered Debt Security (including Registered Debt
Securities in global registered form), as the absolute owner thereof (whether
or not such Debt Security or coupon shall be overdue and notwithstanding any
notice to the contrary) for the purpose of making payment and for all other
purposes. (Section 407)
Replacement of Securities Coupons
Any mutilated Debt Security and any Debt Security with a mutilated coupon
appertaining thereto will be replaced by the Company at the expense of the
holder upon surrender of such mutilated Debt Security or Debt Security with a
mutilated coupon to the Security Registrar. Debt Securities or coupons that
become destroyed, stolen or lost will be replaced by the Company at the
expense of the holder upon delivery to the Security Registrar of evidence of
the destruction, loss or theft thereto satisfactory to the Company and the
Security Registrar; in the case of any coupon which becomes destroyed, stolen
or lost, such coupon will be replaced (upon surrender to the Security
Registrar of the Debt Security with all appurtenant coupons not destroyed,
stolen or lost) by issuance of a new Debt Security in exchange for the Debt
Security to which such coupon appertains. In the case of a destroyed, lost
or stolen Debt Security or coupon, an indemnity satisfactory to the Security
Registrar and the Company may be required at the expense of the holder of
such Debt Security or coupon before a replacement Debt Security will be
issued. Notwithstanding the foregoing, if such new Debt Security is a Bearer
Security, such Debt Security shall be delivered only outside the United
States. (Section 405)
Governing Law
The Indenture, the Debt Securities and the coupons will be governed by, and
construed in accordance with, the laws of the State of New York.
-17-
<PAGE>
Concerning the Trustee
The Company may from time to time maintain lines of credit, and have other
customary banking relationships, with State Street Bank and Trust Company,
the Trustee under the Indenture, State Street Bank and Trust Company, N.A.,
an affiliate of the Trustee, or with either of their affiliates. State
Street Bank and Trust Company, as successor to The First National Bank of
Boston, also serves as the indenture trustee with respect to the Company's
Indenture dated as of December 15, 1991, providing for an unlimited amount of
debt securities and under which are issued and outstanding the Company's
7-1/4% Notes due January 15, 1997 and 8% Notes due March 15, 1999. Boston
EquiServe, L.P., a joint venture of which the Trustee is an affiliate, serves
as Transfer Agent and Registrar for the Company's Common Stock.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities in any of three ways: (i) through
underwriters, (ii) through agents or (iii) directly to a limited number of
institutional purchasers or to a single purchaser. The Prospectus Supplement
with respect to each series of Debt Securities will set forth the terms of
the offering of the Debt Securities of such series, including the name or
names of any underwriters, the purchase price and the proceeds to the Company
from such sale, any underwriting discounts and other items constituting
underwriters' compensation, any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers and any
securities exchanges on which the Debt Securities of such series may be
listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale.
The Debt Securities may be either offered to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters to purchase Debt Securities will be subject
to certain conditions precedent and the underwriters will be obligated to
purchase all the Debt Securities of a series if any are purchased. Any
initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer
or sale of the Debt Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a
best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents or underwriters to solicit offers by certain types of institutions to
purchase Debt Securities from the Company at the public offering price set
forth in the Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the future. Such
contracts will be subject only to those conditions set forth in the
Prospectus Supplement, and the Prospectus Supplement will set forth the
commissions payable for solicitation of such contracts.
-18-
<PAGE>
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be
customers of, engage in transactions with, or perform services for, the
Company in the ordinary course of business.
Each series of Debt Securities will be a new issue of securities with no
established trading market. Any underwriters to whom Debt Securities are
sold by the Company for public offering and sale may make a market in such
Debt Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any Debt Securities.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
as of December 31, 1995 and 1994, and for each of the years in the three-year
period ended December 31, 1995, have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
public accountants, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
The report of KPMG Peat Marwick LLP dated January 30, 1996 refers to a
change in 1993 in the method of accounting for income taxes and for certain
postretirement and postemployment benefits.
With respect to the unaudited interim financial information for the periods
ended March 31, 1996 and April 2, 1995, June 30, 1996 and July 2, 1995 and
September 29, 1996 and October 1, 1995, incorporated by reference herein, the
independent certified public accountants have reported that they applied
limited procedures in accordance with professional standards for a review of
such information. However, their separate reports included in the Company's
quarterly reports on Form 10-Q for the quarters ended March 31, 1996,
June 30, 1996 and September 29, 1996, and incorporated by reference herein,
state that they did not audit and they do not express an opinion on that
interim financial information. Accordingly, the degree of reliance on their
reports on such information should be restricted in light of the limited
nature of the review procedures applied. The accountants are not subject to
the liability provisions of Section 11 of the Securities Act of 1933 for
their report on the unaudited interim financial information because their
report is not a "report" or a "part" of the registration statement prepared
or certified by the accountants within the meaning of Sections 7 and 11 of
such Act.
-19-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an itemization of all expenses (subject to future
contingencies) incurred or expected to be incurred by the Company in
connection with this Registration Statement.
SEC registration fee............... $129,327*
Legal fees and expenses............ 147,000
Accounting fees and expenses....... 10,000
Trustee's fees..................... 15,000
Printing and engraving fees........ 8,000
Rating Agency Fees................. 175,000
Blue Sky fees and expenses......... 5,000
Miscellaneous expenses............. 10,673
--------
Total $500,000
========
______________________
* In addition, the Company has previously paid an SEC registration
fee of $31,250 in connection with the amount of securities
($100,000,000 as of November 1, 1996) eligible to be sold
under and being carried forward from the Prior Registration Statement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 102 of the Delaware General Corporation Law (the
"DGCL"), the Company's Restated Certificate of Incorporation eliminates a
director's personal liability for monetary damages to the Company and its
stockholders arising from a breach of a director's fiduciary duty, except for
liability with respect to an illegal dividend or stock repurchase or
liability for a breach of the director's duty of loyalty to the Company or
its stockholders, for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law or for any transaction
in which the director derived an improper personal benefit. The effect of
this provision in the Certificate of Incorporation is to eliminate the rights
of the Company and its stockholders (through stockholders' derivative suits
on behalf of the Company) to recover monetary damages against a director for
breach of fiduciary duty as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described
above.
The Company's By-Laws provide that, to the extent not inconsistent with
Delaware or other applicable law in effect from time to time, the Company
shall indemnify any person who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of the Company) by reason of the fact that he is or
was a director, officer, employee or agent of the Company or is or was
serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in, or not opposed to, the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
II-1
<PAGE>
The Company's By-Laws also provide that, to the extent not inconsistent
with Delaware or other applicable law in effect from time to time, the
Company shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or
in the right of the Company to procure a judgment in its favor by reason of
the fact that such person acted in any of the capacities set forth above,
against expenses (including attorney's fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted under similar standards, except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the Company unless and only to the extent
that the Court of Chancery or the court in which such action or suit was
brought shall determine that despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Generally, a director will be entitled to be indemnified against a claim if
a majority of the directors who are not parties to the relevant legal
proceedings, independent legal counsel or the stockholders determine that the
director acted under such standards.
The Company's By-Laws further provide that to the extent that a director,
officer, employee or agent of the Company has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to above
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith; that the indemnification provided for by the
By-Laws shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and that the Company is empowered to
purchase and maintain insurance on behalf of a person who is or was acting in
any of the capacities set forth above against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Company would have the power to indemnify him
against such Liabilities under the By-Laws.
Section 145 of the DGCL similarly provides for indemnification by the
Company of its directors and officers and certain other persons.
The Company maintains policies of insurance under which directors, officers
and certain employees of the Company and its subsidiaries are insured,
subject to certain specific exclusions and deductible maximum amounts,
against loss arising from any civil claim which may be made against them, or
any of them, arising out of any misstatement, misleading statement, omission
or other act done or alleged to have been done, or wrongfully attempted,
while acting in their representative capacities.
II-2
<PAGE>
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description
1 Proposed Form of Distribution Agreement.*
4.1 Form of Indenture between the Company and State Street
Bank and Trust Company, as Trustee.*
4.2 Form of Fixed Rate Medium-Term Note (included in Exhibit 4.1)
4.3 Form of Floating Rate Medium-Term Note (included in Exhibit 4.1)
4.4 Form of Fixed Rate Security with and without Redemption
Provision (included in Exhibit 4.1).
5 Opinion of Cravath, Swaine & Moore as to the legality
of the securities being registered hereby.*
12 Statement re computation of earnings to fixed charges.*
15 Letter re unaudited interim financial information.*
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of Cravath, Swaine, & Moore (included in Exhibit 5).*
24 Powers of Attorney (included in the signature pages
to the Registration Statement).*
25 Form T-1 Statement of Eligibility and Qualification of Trustee.*
___________________
* Filed electronically herewith.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cambridge, Commonwealth of Massachusetts, on
October 22, 1996.
POLAROID CORPORATION,
by /s/ Gary T. DiCamillo
----------------------------
Name: Gary T. DiCamillo
Title: Chairman of the Board
and Chief Executive Officer
Know All Men By These Presents, that each person whose signature appears
below constitutes and appoints Gary T. DiCamillo, William J. O'Neill, Jr. and
Thomas M. Lemberg, severally, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, and in any and all capacities, to sign any and all
amendments to this Registration Statement and Registration Statement
No. 33-44661 of the Registrant, and to file the same with all exhibits
thereto and other documents in connection therewith with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents,
severally, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as each such person might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents,
or their substitute or substitutes, may lawfully do or cause to be done by
virtue hereof, all on October 22, 1996.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated and on October 22, 1996.
Signature Title
--------- -----
/s/ Gary T. DiCamillo Chairman of the Board
- --------------------------- and Chief Executive Officer
Gary T. DiCamillo (Chief Executive Officer)
/s/ Ralph E. Gomory Director
- ---------------------------
Ralph E. Gomory
/s/ Frank S. Jones Director
- ---------------------------
Frank S. Jones
/s/ John W. Loose Director
- ---------------------------
John W. Loose
II-4
<PAGE>
Signature Title
--------- -----
/s/ Albin F. Moschner Director
- ---------------------------
Albin F. Moschner
/s/ Henry Necarsulmer Director
- ---------------------------
Henry Necarsulmer
/s/ Kenneth H. Olsen Director
- ---------------------------
Kenneth H. Olsen
/s/ Ronald F. Olsen Director
- ---------------------------
Ronald F. Olsen
/s/ Lester Pollack Director
- ---------------------------
Lester Pollack
/s/ Charles P. Slichter Director
- ---------------------------
Charles P. Slichter
/s/ Ralph Z. Sorenson Director
- ---------------------------
Ralph Z. Sorenson
/s/ Delbert C. Staley Director
- ---------------------------
Delbert C. Staley
/s/ Bernee D. L. Strom Director
- ---------------------------
Bernee D. L. Strom
/s/ Alfred M. Zeien Director
- ---------------------------
Alfred M. Zeien
/s/ William J. O'Neill, Jr. Executive Vice President
- --------------------------- and Chief Financial Officer
William J. O'Neill, Jr. (Principal Financial Officer)
/s/ Carl L. Lueders Vice President and Controller
- --------------------------- (Controller)
Carl L. Lueders
II-5
U.S. $500,000,000*
Polaroid Corporation
Medium-Term Notes, Series A
DISTRIBUTION AGREEMENT
November , 1996
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
c/o Lehman Brothers Inc.
3 World Financial Center
New York, New York 10285
Dear Sirs:
Polaroid Corporation, a Delaware corporation (the "Company"), confirms
its agreement with each of you (individually, an "Agent" and collectively,
the "Agents") with respect to the issuance and sale by the Company of up to
an aggregate of $500,000,000* in gross proceeds of its Medium-Term Notes,
Series A (the "Notes"). The Notes are to be issued from time to time
pursuant to an indenture, dated as of_____________, 1996 (as it may be
supplemented or amended from time to time, the "Indenture"), between the
Company and State Street Bank and Trust Company, as trustee (the "Trustee").
The Notes shall have the maturity ranges, applicable interest rates or
interest rate formulas, specified currency, issue price, redemption and
repayment provisions and other terms set forth in the Prospectus referred to
in Section 1(a) as it may be amended or supplemented from time to time,
including any supplement providing for the interest rate, maturity and other
terms of any Note (a "Pricing Supplement"). The Notes will be issued, and
the terms thereof established, from time to time, by the Company in
accordance with the Indenture and the Procedures referred to below. This
Agreement shall only apply to sales of the Notes and not to sales of any
other securities or evidences of indebtedness of the Company and only on the
specific terms set forth herein.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell its Notes directly on its own behalf and
of the right (notwithstanding anything to the contrary in Section 2(a) or
otherwise herein) to appoint, upon prior written notice to the Agents,
additional persons as "Agents" hereunder (provided that each such additional
person agrees to be bound by all of the terms of this Agreement (including
Exhibit A)), the Company hereby (i) appoints each of the Agents as the agent
of the Company for the purpose of soliciting and receiving offers to purchase
Notes from the Company and (ii) agrees that whenever the Company determines
to sell Notes directly to an Agent as principal it will enter into a separate
agreement (each a "Purchase Agreement"). Each such Purchase Agreement,
whether oral (and confirmed in writing, which may be by facsimile
transmission) or in writing, shall be with respect to such information (as
applicable) as specified in Exhibit C hereto, relating to such sale in
accordance with Section 2(e) hereof. Notwithstanding anything to the
contrary contained herein, including Section 2(a), the Company may accept
offers to purchase Notes through an agent other than the Agents if the
Company shall not have solicited such offers (provided that each such
additional agent agrees to be bound by all of the terms of this Agreement
(including Exhibit A)). The Company shall notify the Agents promptly after
the acceptance of any such offer pursuant to the preceding sentence.
_______________________________
* Or the U.S. dollar equivalent in certain specified foreign currencies or
currency units.
<PAGE>
Section 1. Representations and Warranties.
The Company represents and warrants to each Agent as of the date hereof,
as of the Closing Date (defined herein) and as of the times referred to in
Sections 6(a) and 6(b) hereof (the Closing Date and each such time being
hereinafter sometimes referred to as a "Representation Date"), as follows:
(a) A registration statement on Form S-3 (Registration No. 333-0791)
(the "Rule 429 Registration Statement") with respect to the Notes, as amended
by Pre-Effective Amendment No. 1 thereto which also constitutes Post
Effective Amendment No. 1 ("Post Effective Amendment No. 1") to a
registration statement on Form S-3 (Registration No. 33-44661) (the "Earlier
Registration Statement") with respect to the Notes, (i) has been prepared by
the Company in conformity with the requirements of the U.S. Securities Act of
1933, as amended (the "Securities Act"), and the rules and regulations (the
"Rules and Regulations") of the U.S. Securities and Exchange Commission (the
"Commission") thereunder, (ii) has been filed by the Company with the
Commission under the Securities Act and (iii) has become effective under the
Securities Act. As provided in Section 3(b), a prospectus supplement
reflecting the terms of the Notes, the terms of the offering thereof and the
other matters set forth therein will be prepared and filed pursuant to Rule
424 under the Securities Act. In addition, a preliminary prospectus
supplement reflecting the terms of the Notes, the terms of the offering
thereof, and the other matters set forth therein may also be prepared and
filed pursuant to Rule 424 under the Securities Act. Such prospectus
supplement, in the form filed pursuant to Rule 424, is herein referred to as
the "Prospectus Supplement", and any such preliminary prospectus supplement
in the form filed pursuant to Rule 424 is hereafter referred to as the
"Preliminary Prospectus Supplement". Any prospectus accompanied by a
Preliminary Prospectus Supplement is hereinafter referred to, collectively
with such Preliminary Prospectus Supplement, as a "Preliminary Prospectus."
The Rule 429 Registration Statement and the Earlier Registration Statement,
as amended at the time of the applicable Representation Date, including the
exhibits thereto and the documents incorporated by reference therein, are
herein called the "Registration Statement", and the basic prospectus included
therein relating to all offerings of securities under the Registration
Statement, as supplemented by the Prospectus Supplement and the Pricing
Supplement, is herein called the "Prospectus", except that, if such basic
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case
including the documents filed by the Company with the Commission pursuant to
the U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act"),
that are incorporated by reference therein. Any reference to any amendment
to the Registration Statement shall be deemed to refer to and include any
annual or interim report of the Company or other documents filed pursuant to
Section 13(a) or 15(d) of the Exchange Act after the effective date of the
Registration Statement that is incorporated by reference in the Registration
Statement. The Commission has not issued any order suspending the
effectiveness of the Registration Statement, and, to the knowledge of the
Company, no stop-order has been initiated or threatened by the Commission.
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<PAGE>
(b) On the effective date of the Rule 429 Registration Statement and
Post-Effective Amendment No. 1 (the "effective date of the Registration
Statement"), the Registration Statement conformed in all material respects to
the requirements of the Securities Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission under such acts 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 applicable Representation Date and at the times during each period during
which, in the reasonable opinion of counsel for the Agents, a prospectus
relating to the Notes is required to be delivered by the Company or the
Agents under the Act (each a "Marketing Period"), the Registration Statement
and the Prospectus will conform in all material respects to the requirements
of the Securities Act, the Trust Indenture Act and the Rules and Regulations,
and none 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, provided that the
Company makes no representation or warranty under this Agreement as to that
part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (the "Form T-1") under the Trust Indenture Act
of the Trustee under the Indenture or information contained in or omitted
from the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Agent specifically for
inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and any further documents so filed and incorporated by reference in the
Prospectus, when such documents become effective or are filed with
Commission, as the case may be, will conform in all material respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(d) The Company has full corporate power and authority to execute and
deliver this Agreement and the Purchase Agreement (if any) and perform its
obligations hereunder and thereunder; each of this Agreement and the Purchase
Agreement (if any) has been duly authorized, executed and delivered by the
Company and constitutes the valid and legally binding obligation of the
Company.
(e) Neither the Company nor any of its subsidiaries (as defined in Rule
405 of the Rules and Regulations) (i) is in violation of its corporate
charter or by-laws, (ii) is in default, and no event has occurred which is
continuing and, with notice or lapse of time or both, would constitute a
default, under any agreement, indenture or instrument or (iii) is in
violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property may be subject or has failed to obtain any
license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its
business, the effect of which violation, default or failure in clauses (i),
(ii) and (iii) would be material to the Company and its subsidiaries taken as
a whole; the execution, delivery and performance of this Agreement and each
applicable Purchase Agreement, if any, and compliance by the Company with the
provisions of the Indenture and the Notes will not conflict with, result in
the creation or imposition of any material lien, charge or encumbrance upon
any of the assets of the Company or any of its subsidiaries pursuant to the
terms of, or constitute a default under, any material agreement, indenture or
instrument, or result in a violation of the corporate charter or by-laws of
the Company or any of its subsidiaries or any order, rule, or regulation of
any court or governmental agency having jurisdiction over the Company, any of
its subsidiaries or their respective properties; and except as required by
the Securities Act, the Trust Indenture Act, the Exchange Act, and applicable
state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance of this Agreement or each applicable
Purchase Agreement, if any, or compliance with the provisions of the
Indenture and the Notes by the Company.
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<PAGE>
(f) Except as set forth or contemplated in the Registration Statement
and Prospectus, neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included
or incorporated by reference in the Registration Statement and Prospectus,
any material loss or interference with its business from fire, explosion,
flood, or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, and since
such date, there has not been any material change in the capital stock or
increases in the long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the business, properties, financial
condition or results of operations of the Company and its subsidiaries taken
as a whole.
(g) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and whose reports appear in the Registration
Statement and the Prospectus or are incorporated by reference therein, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(h) The Indenture conforms in all material respects to the requirements
of the Trust Indenture Act and the applicable rules and regulations
thereunder, and has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and constitutes the
valid and legally binding instrument of the Company enforceable in accordance
with its terms; the Notes have been duly authorized by the Company, and, when
the terms of the Notes and of their issue and sale have been duly established
in accordance with the Indenture and this Agreement, and the Notes have been
duly executed, authenticated, issued and delivered against payment therefor
as provided herein and the Indenture, the Notes will be duly executed and
duly issued by the Company and duly authenticated and delivered by the
Trustee, and will constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and will be enforceable against the
Company in accordance with their terms and the terms of the Indenture; and
the Notes and the Indenture will conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(i) The Company and each of its subsidiaries have been duly
incorporated and are validly existing and in good standing under the laws of
their respective jurisdictions of incorporation, are duly qualified to do
business and in good standing as foreign corporations in each jurisdiction in
which their respective ownership of property or the conduct of their
respective businesses requires such qualification (except where the failure
so to qualify would not have a material adverse effect upon the Company and
its subsidiaries taken as a whole), and have all power and authority
necessary to own or hold their respective properties and to conduct the
businesses in which they are engaged; all of the outstanding shares of
capital stock of each of the Company's subsidiaries are validly issued and
outstanding, fully paid and non-assessable and, except as otherwise described
in the Registration Statement and the Prospectus, are owned, directly or
indirectly, by the Company free and clear of all liens, claims, or
encumbrances; and none of the subsidiaries of the Company (other than
Polaroid International B.V. or any other subsidiary identified in a writing
delivered by the Company to the Agents) is a significant subsidiary, as such
term is defined in Rule 405 under the Securities Act.
(j) The Company has an authorized capitalization as set forth in the
Registration Statement and the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and issued
and are fully paid and nonassessable.
(k) Except as described in the Registration Statement and the
Prospectus, there is no material litigation or governmental proceeding
pending or, to the knowledge of the Company, threatened against the Company
or any of its subsidiaries which might result in any material adverse change
in the financial condition, results of operations or business of the Company
and its subsidiaries taken as a whole or which is required to be disclosed in
the Registration Statement or the Prospectus.
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(l) Except as otherwise disclosed therein, the financial statements
filed as part of the Registration Statement or included or incorporated by
reference in any Preliminary Prospectus or the Prospectus present fairly the
financial condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, have been prepared
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(m) There are no contracts or other documents that are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
(n) There are no holders of securities of the Company who, by reason of
the filing of the Registration Statement under the Securities Act or the
execution by the Company of this Agreement or each applicable Purchase
Agreement, if any, have the right to request or demand that the Company
register under the Securities Act securities held by them.
(o) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
Section 2. Solicitations as Agent; Purchases as Principal
(a) Appointment. Subject to the terms and conditions stated herein,
the Company hereby appoints each of the Agents as one of the exclusive agents
of the Company for the purpose of soliciting or receiving offers to purchase
the Notes from the Company by others. On the basis of the representations and
warranties contained herein, but subject to the terms and conditions herein
set forth, each Agent agrees, as one of the exclusive agents of the Company,
to use its reasonable efforts to solicit offers to purchase the Notes upon
the terms and conditions set forth in the Prospectus. Except as otherwise
provided herein (including in the third paragraph hereof), so long as this
Agreement shall remain in effect with respect to any Agent, the Company shall
not, without the consent of each such Agent, solicit or accept offers to
purchase Notes otherwise than through one of the Agents provided, however,
the Company expressly reserves the right to sell Notes directly to investors,
in which case the Agents shall not receive any commission with respect to
such sale. Each Agent may also purchase Notes from the Company as principal
for purposes of resale, as more fully described in paragraph (e) of this
Section.
(b) Suspension of Solicitation. The Company reserves the right, in its
sole discretion, to suspend solicitation of offers to purchase the Notes
commencing at any time for any period of time or indefinitely. Upon receipt
of at least one business day's prior written notice from the Company, the
Agents will forthwith suspend solicitation of offers to purchase Notes from
the Company until such time as the Company has advised the Agents that such
solicitation may be resumed. For the purpose of this agreement, "business
day" shall mean any day which is not a Saturday or Sunday and which is not a
day on which (i) banking institutions are generally authorized or obligated
by law to close in The City of New York and (ii) The New York Stock Exchange,
Inc. is closed for trading.
Upon receipt of notice from the Company as contemplated by Section
3(d) hereof, each Agent shall suspend its solicitation of offers to purchase
Notes until such time as the Company shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as
the case may be, contemplated by Section 3(d) and shall have advised such
Agent that such solicitation may be resumed.
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(c) Agent's Commission. Promptly upon the closing of the sale of any
Notes sold by the Company as a result of a solicitation made by or offer to
purchase received by an Agent, the Company agrees to pay such Agent a
commission, in accordance with the schedule relating to the Notes set forth
in Exhibit A hereto.
(d) Solicitation of Offers. The Agents are authorized to solicit
offers to purchase the Notes only in denominations as are specified in the
Prospectus at a purchase price as shall be specified by the Company. Each
Agent shall communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes received by it as an Agent. The Company shall have
the sole right to accept offers to purchase the Notes and may reject any such
offer in whole or in part. Each Agent shall have the right, in its
discretion reasonably exercised without advising the Company, to reject any
offer to purchase the Notes received by it, in whole or in part, and any such
rejection shall not be deemed a breach of its agreement contained herein.
No Note which the Company has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Company, until such Note shall have been delivered to the purchaser thereof
against payment by such purchaser.
(e) Purchases as Principal. Each sale of Notes to any Agent as
principal, for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale), shall be made in accordance
with the terms of this Agreement and a Purchase Agreement whether oral (and
confirmed in writing by such Agent to the Company, which may be by facsimile
transmission) or in writing, which will provide for the sale of such Notes
to, and the purchase thereof by, such Agent. A Purchase Agreement may also
specify certain provisions relating to the reoffering of such Notes by such
Agent. The commitment of any Agent to purchase Notes from the Company as
principal shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Purchase
Agreement shall specify the principal amount and terms of the Notes to be
purchased by an Agent, the time and date (each such time and date being
referred to herein as a "Time of Delivery") and place of delivery of and
payment for such Notes and such other information (as applicable) as is set
forth in Exhibit C hereto. The Company agrees that if any Agent purchases
from it Notes as principal for resale such Agent shall receive such
compensation, in the form of a discount or otherwise, as shall be indicated
in the applicable Purchase Agreement or, if no compensation is indicated
therein, a commission in accordance with Exhibit A hereto. Any Agent may
utilize a selling or dealer group in connection with the resale of such
Notes. In addition, the Agents may offer the Notes they have purchased as
principal to other dealers. Any Agent may sell Notes to any dealer at a
discount. Such Purchase Agreement shall also specify any requirements for
delivery of opinions of counsel, accountant's letters and officers'
certificates pursuant to Section 5 hereof.
(f) Purchase Agreement. If the parties to any Purchase
Agreement so agree, the following provisions shall be included in such
Purchase Agreement:
"If, at any Time of Delivery, any Purchaser defaults in the
performance of its obligations under this Agreement, the remaining non-
defaulting Purchasers shall be obligated to purchase the Notes which the
defaulting Purchaser agreed but failed to purchase at such Time of Delivery,
in the respective proportions which the principal amount of Notes set
opposite the name of each remaining non-defaulting Purchaser in Schedule 1
hereto bears to the aggregate principal amount of Notes set opposite the
names of all the remaining non-defaulting Purchasers in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Purchasers shall not be
obligated to purchase any Notes at such Time of Delivery if the aggregate
principal amount of Notes which the defaulting Purchaser or Purchasers agreed
but failed to purchase exceeds 9.09% of the total principal amount of Notes
to be purchased at such Time of Delivery and any remaining non-defaulting
Purchaser shall not be obligated to purchase more than 110% of the aggregate
principal amount of Notes which it agreed to purchase at such Time of
Delivery pursuant to this Agreement. If the foregoing maximums are exceeded,
the remaining non-defaulting Purchasers, or those other Purchasers or
underwriters who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportions as may be agreed upon among them, all the
Notes to be purchased at such Time of Delivery. If the remaining Purchasers
or other Purchasers or underwriters do not elect to purchase the Notes which
the defaulting Purchaser or Purchasers agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Purchaser or the Company, except that the Company will continue to be liable
for the payment of expenses to any non-defaulting Purchaser as set forth in
Section 4 of the Distribution Agreement. As used in this Agreement, the term
'Purchaser' includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant
to this provision, purchases Notes which a defaulting Purchaser agreed but
failed to purchase.
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"Nothing contained herein shall relieve a defaulting Purchaser of
any liability it may have to the Company for damages caused by its default.
If other Purchasers are obligated or agree to purchase the Notes of a
defaulting Purchaser, either the Purchasers or the Company may postpone the
Time of Delivery for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Purchasers may be necessary in the Registration Statement or the Prospectus
or in any other document or arrangement."
(g) Administrative Procedures. Administrative procedures respecting
the sale of Notes (the "Procedures") are set forth in Exhibit B hereto and
may be amended in writing from time to time by the Agents and the Company.
Each Agent and the Company agree to perform the respective duties and
obligations specifically provided to be performed by each of them herein and
in the Procedures. The Procedures shall apply to all transactions
contemplated hereunder including sales of Notes to any Agent as principal
pursuant to a Purchase Agreement, unless otherwise set forth in such Purchase
Agreement.
(h) Delivery of Documents. The documents required to be delivered by
Section 5 hereof shall be delivered at the offices of Cravath, Swaine &
Moore, 825 Eighth Avenue, New York, New York 10019, not later than 10:00
A.M., New York City time, on the date of this Agreement or at such later time
as may be mutually agreed upon by the Company and the Agents, which in no
event shall be later than the time at which the Agents commence solicitation
of offers to purchase Notes hereunder (the "Closing Date").
Section 3. Covenants of the Company
The Company agrees to furnish promptly to Simpson Thacher & Bartlett,
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 and, in connection with each offering of Notes, the Company further
agrees, except during any period of solicitation suspension pursuant to
Section 2(b):
(a) Delivery of Signed Registration Statement and Other Documents. To
deliver promptly to each Agent and counsel to the Agents such number of
conformed copies of the Registration Statement as originally filed and each
amendment thereto (in each case excluding exhibits other than the computation
of the ratio of earnings to fixed charges, the Indenture and this Agreement)
and of each Preliminary Prospectus, the Prospectus and any documents
incorporated by reference in the Preliminary Prospectus or Prospectus
(excluding exhibits thereto) and any amended or supplemented Prospectus, as
each Agent and counsel to the Agents may request;
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(b) Commission Filings. To file a Prospectus Supplement relating to
the Notes in a form approved by the Agents and to file the Prospectus,
including the Prospectus Supplement and any Pricing Supplement, with the
Commission pursuant to the applicable provisions of Rule 424(b) of the Rules
and Regulations within the time period provided therein and, during any
Marketing Period, (i) to file any amendment to the Registration Statement or
any supplement to the Prospectus that may, in the reasonable judgment of the
Company or the Agents, be required by the Securities Act or requested by the
Commission in conformity with the Securities Act or the Exchange Act, (ii) to
file under the Exchange Act any document incorporated by reference in the
Prospectus that may, in the reasonable judgment of the Company or the Agents,
be required by the Securities Act or requested by the Commission in
conformity with the Securities Act or the Exchange Act and (iii) to file
promptly with the Commission all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Prospectus;
(c) Copies of Filings with Commission. Prior to filing with the
Commission during any Marketing Period any amendment to the Registration
Statement or supplement to the Prospectus or to filing any Prospectus
pursuant to Rule 424(b)(1), (b)(3) or (b)(4) of the Rules and Regulations
(excluding any document incorporated by reference in the Prospectus and
excluding any amendment or supplement or Prospectus relating to an offering
of debt securities other than Notes), to furnish a copy thereof to the Agents
and counsel for the Agents and obtain the consent of the Agents (which
consent shall not be unreasonably withheld) regarding the filing;
(d) Notice to Agents of Certain Events. To advise the Agents promptly
(i) when any post-effective amendment to the Registration Statement becomes
effective, (ii) of any request or proposed request by the Commission for an
amendment to the Registration Statement, a supplement to the Prospectus or
any additional information, (iii) upon the Company receiving notice of the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threat of any stop order
proceeding, (iv) of receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose,
(v) upon the Company learning of any downgrading in the rating accorded the
Notes or any other debt securities of the Company, or any proposal to
downgrade the rating of the Notes or any other debt securities of the
Company, by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations, or of any public announcement that any such
organization has under surveillance or review, with possible negative
implications, its rating of the Notes or any of the Company's debt securities
as soon as the Company learns of such downgrading, proposal to downgrade or
public announcement and (vi) upon the Company learning of the happening of
any event which makes untrue any statement of a material fact made in the
Registration Statement or the Prospectus, or which requires the making of a
change in the Registration Statement or the Prospectus in order to make any
material statement therein not misleading;
(e) Stop Orders. If, during any Marketing Period, the Commission shall
issue a stop order suspending the effectiveness of the Registration
Statement, suspending or preventing the use of any Preliminary Prospectus or
Prospectuses, or if the qualification of the Notes for sale in any
jurisdiction shall be suspended, to make every reasonable effort to obtain
the lifting of that order or suspension at the earliest possible time;
(f) Earnings Statements. As soon as practicable, but not later than 16
months after the date of each acceptance by the Company of an offer to
purchase Notes hereunder, to make generally available to its security holders
and to the Agents an earning statement of the Company and its subsidiaries
(which need not be audited), conforming with the requirements of Section
11(a) of the Securities Act, covering a period of at least 12 months
beginning on the first day of the first fiscal quarter of the Company
commencing after the later of (i) the effective date of the Registration
Statement, (ii) the effective date of the most recent post-effective
amendment to the Registration Statement to become effective prior to the date
of such acceptance and (iii) the date of the Company's most recent Annual
Report on Form 10-K filed with the Commission prior to the date of such
acceptance;
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<PAGE>
(g) Copies of Reports, Releases and Financial Statements. For a period
of three years after the applicable Representation Date, to furnish to the
Agents copies of all public reports and all reports and financial statements
furnished by the Company to the principal national securities exchange or
quotation system upon which its Common Stock may be listed pursuant to the
requirements of or agreements with such exchange or system or to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Blue Sky Qualifications. Promptly from time to time to take such
action as the Agents may reasonably request to qualify the Notes for offering
and sale under the securities laws of such jurisdictions as the Agents may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(i) Holdback. Between the date of a Purchase Agreement and the date of
delivery of the Notes with respect thereto, the Company, without the consent
of Lehman Brothers Inc. (which consent shall not be unreasonably withheld),
will not offer or sell, or enter into any agreement to sell, any of its debt
securities, other than borrowings under the Company's revolving credit
agreements and lines of credit, the private placement of securities and
issuances of its commercial paper;
(j) Use of Proceeds. To apply the net proceeds from the sale of the
Notes being sold by the Company as set forth in the Prospectus.
(k) Revisions to Prospectus - Material Changes. If, during any
Marketing Period, any event occurs as a result of which the Prospectus would
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, not misleading, or if it is
necessary at any time to amend any Prospectus to comply with the Securities
Act, to notify the Agents promptly, in writing, to suspend solicitation of
purchases of the Notes; and if the Company shall decide to amend or
supplement the Registration Statement or any Prospectus, to promptly advise
the Agents by telephone (with confirmation in writing) and to promptly, in
writing, 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; provided, however, that if during the period referred
to above any Agent shall own any Notes which it has purchased from the
Company as principal with the intention of reselling them, the Company shall
promptly prepare and timely file with the Commission any amendment or
supplement to the Registration Statement or any Prospectus that may, in the
judgment of the Company or the Agents, be required by the Securities Act or
requested by the Commission in conformity with the Securities Act or the
Exchange Act.
(l) Pricing Supplement. To prepare, with respect to any Notes to be
sold through or to the Agents pursuant to this Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved by the
Agents and to file such Pricing Supplement pursuant to Rule 424 under the
Securities Act with the Commission, in each case, within the applicable time
period prescribed for such filing by the Rules and Regulations.
Section 4. Payment of Expenses
The Company will pay:
(i) the costs incident to the authorization, issuance, sale and
delivery of the Notes and any taxes payable in that connection,
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(ii) the costs incident to the preparation, printing and
filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto,
(iii) the costs incident to the preparation, printing and
filing of any document and any amendments and exhibits thereto required to
be filed by the Company under the Exchange Act,
(iv) the costs of distributing the Registration Statement,
as originally filed, and each amendment and post-effective amendment
thereof (including exhibits), the Basic Prospectus, each Prospectus, any
supplement or amendment to any Prospectus and any documents incorporated
by reference in any of the foregoing documents,
(v) the fees and disbursements of the Trustee, any paying
agent, any calculation agent, any exchange rate agent and any other agents
appointed by the Company, and their respective counsel,
(vi) the costs and fees in connection with the listing of the
Notes on any securities exchange,
(vii) the cost and fees in connection with any filings with the
National Association of Securities Dealers, Inc.,
(viii) the fees and disbursements of counsel to the Company and
counsel to the Agents (provided that, unless the Company shall agree to a
greater amount with respect to any calendar year, the Company's obligation to
pay fees and disbursements of counsel to the Agents in connection with the
filing by the Company with the Commission after the Closing of any document
incorporated by reference into any Prospectus pursuant to Item 12 of Form S-3
and the review by such counsel of the certificates, opinions and accountants'
letters referred to in Sections 6(b), (c) and (d) hereof shall be limited to
the annual amount of $16,000 with respect to services performed by such
counsel in any calendar year commencing with the calendar year 1997),
(ix) the fees paid to rating agencies in connection with the
rating of the Notes,
(x) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 3(h)
hereof and of preparing and printing a Blue Sky Memorandum (including fees
and disbursements of counsel for the Agents in connection therewith (not to
exceed $5,000)),
(xi) all advertising expenses in connection with the offering
of the Notes incurred with the consent of the Company, and
(xii) all other reasonable costs and expenses arising out of
the transactions contemplated hereunder and incident to the performance of
the Company's obligations under this Agreement or otherwise in connection
with the activities of the Agents under this Agreement.
Section 5. Conditions of Obligations of Agent
The obligation of the Agents, as the agents of the Company, under this
Agreement to solicit offers to purchase the Notes, the obligation of any
person who has agreed to purchase Notes to make payment for and take delivery
of Notes, and the obligation of any Agent to purchase Notes pursuant to any
Purchase Agreement, is subject to the accuracy, on each Representation Date,
of the representations and warranties of the Company contained herein, to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) Registration Statement. The Prospectus as amended or supplemented
(including the Pricing Supplement) with respect to such Notes shall have been
filed with the Commission pursuant to Rule 424(b) under the Act within the
applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 3(l) hereof; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof nor any order directed to any document incorporated by reference in
any Prospectus shall have been issued and no stop order proceeding shall have
been initiated or threatened by the Commission and no challenge shall have
been made to the accuracy or adequacy of any document incorporated by
reference in any Prospectus; any request of the Commission for inclusion of
additional information required by the Securities Act in the Registration
Statement or any Prospectus shall have been complied with; and the Company
shall not have filed with the Commission any amendment or supplement to the
Registration Statement or any Prospectus (or any document incorporated by
reference therein, excluding any document incorporated by reference in the
Prospectus and excluding any amendment or supplement or Prospectus relating
to an offering of debt securities other than Notes) without the consent of
the Agents (which consent shall not be unreasonably withheld).
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(b) No Suspension of Sale of the Notes. No order suspending the sale
of the Notes in any jurisdiction designated by the Agents pursuant to Section
3(h) hereof shall have been issued, and no proceeding for that purpose shall
have been threatened by any governmental agency or legally initiated.
(c) No Material Omissions or Untrue Statements. No Agent shall have
discovered and disclosed to the Company that the Registration Statement or
any Prospectus contains an untrue statement of a fact which, in the opinion
of counsel for the Agents, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein or
is necessary to make the statements therein not misleading.
(d) Legal Matters Satisfactory to Counsel. All corporate proceedings
and other legal matters incident to the authorization, form and validity of
this Agreement, the Notes, the Indenture, the form of the Registration
Statement, each Prospectus (other than financial statements and other
financial data) and all other legal matters relating to this Agreement and
the transactions contemplated hereby shall be satisfactory in all respects to
counsel for the Agents and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable them
to pass upon such matters, and counsel to the Agents shall have furnished the
Agents their favorable opinion with respect to such matters and such
additional matters as the Agents may reasonably request.
(e) Opinions of Company Counsel. At the Closing Date, the Agents shall
have received:
(1) the opinion, addressed to the Agents and dated the Closing
Date, of Cravath, Swaine & Moore, outside counsel to the Company, in the form
of Exhibit E; and
(2) The opinion, addressed to the Agents and dated the
Closing Date, of Thomas M. Lemberg, Esq., Senior Vice President, General
Counsel and Secretary of the Company, in the form of Exhibit F.
(f) Officers' Certificate. The Company shall have furnished to the
Agents on the Closing Date a certificate, dated the Closing Date, of its
President or Vice President and its Treasurer or an Assistant Treasurer
stating that:
(i) The representations and warranties of the
Company contained herein are true and correct as of the Closing Date; the
Company has complied with all its agreements contained herein; and the
conditions on its part to be fulfilled prior to the Closing Date set forth
herein have been fulfilled;
(ii) They have carefully examined the Registration
Statement, the Prospectus and the documents incorporated therein and, in
their opinion, (A) as of the effective date of the Registration Statement,
neither the Registration Statement nor the Prospectus included any untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(B) as of its date, the Prospectus did not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (C) since the effective date of the Registration
Statement or the date of the Prospectus, as the case may be, no event has
occurred which should have been set forth in an amendment of the Registration
Statement or a supplement to or amendment of the Prospectus which has not
been set forth in such a supplement or amendment.
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(g) Accountant's Letter. The Company shall have furnished to the
Agents on the Closing Date a letter of KPMG Peat Marwick LLP, addressed
jointly to the Company and the Agents and dated the Closing Date, of the type
described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 72, covering such specified financial
statement items and procedures as the Agents may reasonably request prior to
the execution of this Agreement and in form and substance satisfactory to the
Agents.
(h) Additional Conditions. There shall not have occurred: (a) any
downgrading in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations, (b) any public announcement that any such organization has under
surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities, (c) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange, the
Chicago Board Options Exchange or the over-the-counter market or the
establishment of minimum prices on one or more of such exchanges or such
market by the Commission or such exchange or other regulatory body or
governmental authority having jurisdiction, (d) a banking moratorium declared
by United States federal or New York State authorities, (e) any outbreak or
escalation in hostilities involving the United States or a declaration of a
national emergency or war by the United States, (f) any material adverse
change in national or international political, financial or economic
conditions, national or international equity markets or currency exchange
rates or controls as to make it, in the judgment of the Agents, inadvisable
or impracticable to proceed with the solicitation of offers to purchase Notes
or the purchase of Notes from the Company as principal pursuant to the
applicable Purchase Agreement, as the case may be, or (g)(i) the Company or
any of its subsidiaries shall have sustained since the date of the latest
[audited] financial statements included or incorporated by reference in the
Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus or (ii) since such date
there shall have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of operations
of the Company and its subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is, in the judgment of the Agents, so
material and adverse as to make it impracticable or inadvisable to proceed
with the solicitation of offers to purchase Notes or the purchase of Notes
from the Company as principal pursuant to the applicable Purchase Agreement,
as the case may be.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are exactly in the form set forth above and,
if not, or if no particular form is set forth above, only if they are in form
and substance satisfactory to counsel for the Agents.
Section 6. Additional Covenants of the Company.
(a) Acceptance of Offer Affirms Representations and Warranties. The
Company covenants and agrees that each acceptance by it of an offer for the
purchase of Notes shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and
in any certificate theretofore given to the Agents pursuant hereto are true
and correct at the time of such acceptance, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the purchaser or such purchaser's agent of the Notes relating to
such acceptance as though made at and as of each such time (and such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended or supplemented to each such time).
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(b) Subsequent Delivery of Officers' Certificates. The Company agrees
that during each Marketing Period (unless a suspension shall be in effect
under Section 2(b)), each time that the Registration Statement or any
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement providing solely for the interest rates or maturities of the Notes
or the principal amount of Notes remaining to be sold or similar changes and
other than an amendment or supplement relating exclusively to an offering of
debt securities other than Notes), each time the Company sells Notes to an
Agent as principal and the applicable Purchase Agreement specifies the
delivery of an officers' certificate under this Section 6(b) as a condition
to the purchase of Notes pursuant to such Purchase Agreement or the Company
files with the Commission any document incorporated by reference into any
Prospectus, the Company shall submit to the Agents a certificate, (i) as of
the date of such amendment, supplement, Time of Delivery relating to such
sale or filing or (ii) if such amendment, supplement or filing was not filed
during a Marketing Period, as of the first day of the next succeeding
Marketing Period (unless a suspension shall be in effect under Section 2(b)),
representing that the statements contained in the certificate referred to in
Section 5(f) hereof which was last furnished to the Agents are true and
correct at the time of such amendment, supplement or filing, as the case may
be, as though made at and as of such time (except that such statements shall
be deemed to relate to the Registration Statement and each Prospectus as
amended and supplemented to such time).
(c) Subsequent Delivery of Legal Opinions. The Company agrees that
during each Marketing Period (unless a suspension shall be in effect under
Section 2(b)), each time that the Registration Statement or any Prospectus
shall be amended or supplemented (other than by a Pricing Supplement
providing solely for the interest rates or maturities of the Notes or the
principal amount of Notes remaining to be sold or similar changes and other
than an amendment or supplement relating exclusively to an offering of debt
securities other than Notes), each time the Company sells Notes to an Agent
as principal and the applicable Purchase Agreement specifies the delivery of
a legal opinion under this Section 6(c) as a condition to the purchase of
Notes pursuant to such Purchase Agreement or the Company files with the
Commission any document incorporated by reference into any Prospectus (other
than a Current Report on Form 8-K which contains no financial information and
which, in the reaosnable judgment of the Company, contains no information
that is materially important to the business, financial condition or results
of operations of the Company and its subsidiaries taken as a whole), the
Company shall, (i) concurrently with such amendment, supplement, Time of
Delivery relating to such sale or filing or (ii) if such amendment,
supplement or filing was not filed during a Marketing Period, on the first
day of the next succeeding Marketing Period (unless a suspension shall be in
effect under Section 2(b)), furnish the Agents and their counsel with the
written opinions of counsel to the Company specified in Section 5(e) hereof,
each addressed to the Agents and dated the date of delivery of such opinion,
in form satisfactory to the Agents, to the same effect as the opinions
referred to in Section 5(e) hereof, but modified, as necessary, to relate to
the Registration Statement and each Prospectus as amended or supplemented to
the time of delivery of such opinion; provided, however, that in lieu of any
such opinion, each such counsel may deliver to the Agents and their counsel a
letter to the effect that the Agents may rely on such prior opinion to the
same extent as if it were dated the date of such letter authorizing reliance
(except that statements in such prior opinion shall be deemed to relate to
the Registration Statement and each Prospectus as amended or supplemented to
the time of delivery of such letter authorizing reliance); provided further
that in connection with any such filing, except the filing of the Company's
Annual Report on Form 10-K, the Company may deliver to the Agents and their
counsel only the legal opinion of counsel to the Company specified in Section
5(e)(2) hereof.
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<PAGE>
(d) Subsequent Delivery of Accountants' Letters. The Company agrees
that during each Marketing Period (unless a suspension shall be in effect
under Section 2(b)), each time that the Registration Statement or any
Prospectus shall be amended or supplemented to include additional financial
information, each time the Company sells Notes to an Agent as principal and
the applicable Purchase Agreement specifies the delivery of a letter under
this Section 6(d) as a condition to the purchase of Notes pursuant to such
Purchase Agreement or the Company files with the Commission any document
incorporated by reference into any Prospectus pursuant to Item 12 of Form S-3
which contains additional financial information, the Company shall cause KPMG
Peat Marwick LLP (or other independent accounts of the Company acceptable to
the Agents) to furnish the Agents, (i) concurrently with such amendment,
supplement, Time of Delivery relating to such sale or filing or (ii) if such
amendment, supplement, or filing was not filed during a Marketing Period, on
the first day of the next succeeding Marketing Period, a letter, addressed
jointly to the Company and the Agents and dated the date of delivery of such
letter, in form and substance reasonably satisfactory to the Agents, to the
same effect as the letter referred to in Section 5(g) hereof but modified to
relate to the Registration Statement and each Prospectus, as amended and
supplemented to the date of such letter, with such changes as may be
necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company; provided,
however, that if the Registration Statement or any Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, such accountants 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].
Section 7. Indemnification and Contribution
(a) The Company shall indemnify and hold harmless each Agent and each
person, if any, who controls any Agent within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or several,
and any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to purchases and sales of the
Notes), to which that Agent or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, or the Registration
Statement or Prospectus as amended or supplemented, or (ii) 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 shall
reimburse each Agent and each such controlling person promptly upon demand
for any legal and other expenses reasonably incurred as incurred by that
Agent or controlling person in investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in (x) any Preliminary Prospectus, the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto,
made in reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Agent specifically for inclusion
therein or (y) in the Form T-1 provided by the Trustee for inclusion therein;
and provided further that as to any Preliminary Prospectus this indemnity
agreement shall not inure to the benefit of any Agent or any person
controlling an Agent on account of any loss, claim, damage, liability or
action arising from the sale of Notes to any person by that Agent if that
Agent failed to send or give a copy of the Prospectus (or the Prospectus as
amended or supplemented) to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the Notes
to such person, and if the Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, claim, damage or liability,
unless such failure resulted from non-compliance by the Company with Section
3(b) hereof. For purposes of the last proviso to the immediately preceding
sentence, the term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and no Agent shall be obligated to send or
give any supplement or amendment to any document incorporated by reference in
any Preliminary Prospectus or the Prospectus to any person other than a
person to whom such Agent had delivered such incorporated document or
documents in response to a written request therefor. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise
have to any Agent or any controlling person of that Agent.
-14-
<PAGE>
(b) Each Agent severally, and not jointly, shall indemnify and hold
harmless the Company, each of its directors, each of its officers who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which the Company, or any such director or officer or controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented, or arises
out of, or is 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, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of that Agent
specifically for inclusion therein, and shall reimburse the Company, or any
such director or officer or controlling person promptly upon demand for any
legal and other expenses reasonably incurred by the Company or any such
director or officer or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action. The foregoing indemnity agreement is in addition to any liability
which any Agent may otherwise have to the Company or any such director,
officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
its obligations hereunder, except to the extent that the indemnifying party
is materially prejudiced by such failure to notify, or from any liability
which it may have to an indemnified party otherwise than under this Section
7. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable investigation, provided, however, that the Agents shall have the
right to employ counsel to represent the Agents and their respective
controlling persons who may be subject to liability arising out of any claim
in respect of which indemnity may be sought by the Agents against the Company
under this Section 7 if, in the reasonable judgment of the Agents, it is
advisable for the Agents and such controlling persons to be represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the indemnifying party. Except as provided above,
it is understood that the indemnifying party shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiffs, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
-15-
<PAGE>
(d) If the indemnification provided for in this Section 7 shall be for
any reason unavailable or insufficient to hold the indemnified party
harmless, then each indemnifying party, with respect to its obligations as
provided in Section 7(a) or 7(b), shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Agents on the other hand from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Agents on the other hand with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and any Agent on the other hand with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from
the sale of the Notes (before deducting expenses) received by the Company
bear to the total commissions received by such Agent with respect to such
offering. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or any Agent, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Agents agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Agents were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 7(d) shall be deemed to include, for purposes of this Section
7(d) and subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
sold through such Agent and distributed to the public was offered to the
public exceeds the amount of any damages which such Agent has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
Section 8. Status of each Agent
In soliciting offers to purchase Notes from the Company pursuant to this
Agreement (other than in respect of any Purchase Agreement), each Agent is
acting individually and not jointly and is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes from the Company has been solicited by such Agent and accepted
by the Company but such Agent shall have no liability to the Company in the
event any such purchase is not consummated for any reason. If the Company
shall default in its obligations to deliver Notes to a purchaser whose offer
it has accepted, the Company shall (i) hold the Agents harmless against any
loss, claim or damage arising from or as a result of such default by the
Company and (ii), in particular, pay to the Agents any commission to which
they would be entitled in connection with such sale.
Section 9. Representations, Warranties and Obligations to Survive
Delivery
The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Agents contained in this Agreement,
or made by or on behalf of them, respectively, pursuant to this Agreement,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any person controlling
such Agent or by or on behalf of the Company, and shall survive each delivery
of and payment for any of the Notes.
-16-
<PAGE>
Section 10. Termination
This Agreement may be terminated for any reason with respect to any
party hereto, at any time, by any party hereto upon the giving of one day's
written notice of such termination to the other parties hereto; provided,
however, if such terminating party is an Agent, such termination shall be
effective only with respect to such terminating party. If, at the time of a
termination, an offer to purchase any of the Notes has been accepted by the
Company but the time of delivery to the purchaser has not occurred, the
provisions of this Agreement shall remain in effect until such Notes are
delivered. The provisions of Sections 2(c), 3(b), 3(f), 3(g), 4, 7, 8 and 9
hereof shall survive any termination of this Agreement.
Section 11. Sales of Notes Denominated in a Foreign Currency and Indexed
Notes
If at any time the Company and any of the Agents shall determine to
issue and sell Notes denominated in a currency or currency unit other than
U.S. Dollars, which other currency may include a composite currency, or with
respect to which an index is used to determine the amounts of payments of
principal and any premium or interest, the Company and any such Agent shall
execute and deliver an Amendment (a "Foreign Currency Amendment" or "Indexed
Note Amendment," as the case may be) in the form attached hereto as Exhibit
G. Such amendment shall establish, as appropriate additions and
modifications that shall apply to the sales, whether offered on an agency or
principal basis, of the Notes covered thereby. The Agents are authorized to
solicit offers to purchase Notes with respect to which an index is used to
determine the amounts of payments of principal and any premium and interest,
and the Company shall agree to any sales of such Notes (whether offered on an
agency or principal basis), only in a minimum aggregate amount of $2,500,000.
Section 12. 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 the Agents shall be directed to it as follows:
Lehman Brothers Inc., 3 World Financial Center, New York, New York
10285-1200, Attention: Medium - Term Note Department, 12th Floor; Telephone
No.: (212) 526-2040; Telecopy No.: (212) 528-1718; [OTHER AGENTS]; notices
to the Company shall be directed to it as follows: Polaroid Corporation, 549
Technology Square, Cambridge, Massachusetts 02139, Attention: Treasurer
(R.Norwood), Telephone No.: (617) 386-3298, Telecopy No.: (617) 386-3277.
Section 13. Binding Effect; Benefits
This Agreement shall be binding upon each Agent, the Company, and their
respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
person or persons, if any, who control any Agent within the meaning of
Section 15 of the Securities Act, and (b) the indemnity agreement of the
Agents contained in Section 7 hereof shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company. Nothing in
this Agreement is intended or shall be construed to give any person, other
than the person referred to in this Section, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
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<PAGE>
Section 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.
Section 15. Paragraph Headings
The paragraph headings used in this Agreement are for convenience of
reference only, and are not to affect the construction hereof or be taken
into consideration in the interpretation hereof.
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<PAGE>
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
Polaroid Corporation
By:_____________________________
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
Lehman Brothers Inc.
By:_________________________________
Title:
J.P. Morgan Securities Inc.
By:_________________________________
Title:
<PAGE>
Exhibit A
Polaroid Corporation
Medium-Term Notes, Series A
SCHEDULE OF PAYMENTS
The Company agrees to pay each Agent a commission equal to the following
percentage of the aggregate U.S. dollar equivalent of the principal amount of
Notes:
Term Commission Rate
-------------------------------------------------------
9 months to less than 12 months 0.125%
-------------------------------------------------------
12 months to less than 18 months 0.150%
-------------------------------------------------------
18 months to less than 2 years 0.200%
-------------------------------------------------------
2 years to less than 3 years 0.250%
-------------------------------------------------------
3 years to less than 4 years 0.350%
-------------------------------------------------------
4 years to less than 5 years 0.450%
-------------------------------------------------------
5 years to less than 6 years 0.500%
-------------------------------------------------------
6 years to less than 7 years 0.550%
-------------------------------------------------------
7 years to less than 10 years 0.600%
-------------------------------------------------------
10 years to less than 15 years 0.625%
-------------------------------------------------------
15 years to less than 20 years 0.650%
-------------------------------------------------------
20 years to 30 years 0.750%
-------------------------------------------------------
More than 30 years To be negotiated
at time of sale
-------------------------------------------------------
<PAGE>
EXHIBIT B
Polaroid Corporation
Medium-Term Notes, Series A
Administrative Procedures
Medium-Term Notes, Series A, due nine months or more from date of
issue (the "Notes") may be offered on a continuing basis by Polaroid
Corporation (the "Company"). Lehman Brothers Inc. and J. P. Morgan
Securities Inc. (along with such other entities who may be appointed in
accordance with the Distribution Agreement (as defined herein), each an
"Agent" and collectively, the "Agents"), have each agreed to use their
reasonable efforts to solicit offers to purchase the Notes. The Notes are
being sold pursuant to a Distribution Agreement between the Company and the
Agents dated November __, 1996 (as it may be supplemented or amended from
time to time, the "Distribution Agreement") to which these administrative
procedures are attached as an exhibit. The Notes will be issued pursuant to
an Indenture, dated as of November __, 1996 (as it may be amended or
supplemented from time to time, the "Indenture"), between the Company and
State Street Bank and Trust Company, as trustee (the "Trustee"). The Notes
will rank equally with all other unsecured and unsubordinated indebtedness of
the Company and will have been registered with the Securities and Exchange
Commission (the "Commission"). Unless otherwise noted, terms not defined
herein shall have the same meanings as in the Prospectus Supplement relating
to the Notes (the "Prospectus") or in the Distribution Agreement, as
applicable. Special administrative procedures for Multi-Currency Notes and
for Global Securities for Book-Entry Notes follow these administrative
procedures.
Administrative procedures for the offering are explained below.
Registration
- ------------
Notes will be issued only in fully registered form as either a
Book-Entry Note or a Certificated Note. Certificated Notes may be presented
for registration of transfer or exchange at the New York office of the
Trustee's designated agent.
Denominations
- -------------
Unless otherwise indicated in the applicable Pricing Supplement,
Notes will be issued and payable in U.S. dollars in denominations of $1,000
and any integral multiple thereof.
Interest Payments
- -----------------
Interest on Fixed Rate Notes and Floating Rate Notes (each as
defined in the Prospectus Supplement) shall accrue and be payable on terms
specified in the Prospectus Supplement and the applicable Pricing Supplement.
Acceptance and Rejection of Offers
- ----------------------------------
The Company shall have the sole right to accept offers to purchase
Notes and may reject any such offer in whole or in part. Each Agent shall
promptly communicate to the Company, orally or in writing, each reasonable
offer to purchase Notes from the Company received by it other than those
rejected by such Agent. Each Agent shall have the right, in its discretion
reasonably exercised without advising the Company, to reject any offers in
whole or in part.
<PAGE>
Settlement
- ----------
The receipt of immediately available funds in U.S. Dollars by the
Company in The City of New York in payment for a Note (less the applicable
commission) and the authentication and issuance of such Note shall, with
respect to such Note, constitute "Settlement." All offers accepted by the
Company will be settled from one to three Business Days from the date of
acceptance by the Company pursuant to the timetable for Settlement set forth
below unless the Company and the purchaser agree to Settlement on a later
date; provided, however, that the Company will so notify the Trustee of any
such later date on or before the Business Day immediately prior to the
Settlement date.
Settlement Procedures for Certificated Notes
- --------------------------------------------
In the event of a purchase of Notes by an Agent, as principal,
appropriate Settlement details will be set forth in the applicable Purchase
Agreement to be entered into between such Agent and the Company pursuant to
the Distribution Agreement. In the Event of the sale of a Multi-Currency
Note or an Indexed Note, additional or different Settlement details may be
set forth in the applicable Amendment to be entered into between the Agent
and the Company pursuant to the Distribution Agreement.
Settlement procedures with regard to each Certificated Note sold
through each Agent shall be as follows:
A. Such Agent will advise the Company by telex or facsimile of the
following Settlement information:
1. Exact name in which the Note is to be registered ("Registered
Owner").
2. Exact address of the Registered Owner and
address for payment of principal and interest,
if any.
3. Taxpayer identification number of the
Registered Owner (if available).
4. Principal amount of the Note (and, if multiple
Notes are to be issued, denominations thereof).
5. Settlement date (Original Issue Date).
6. Stated Maturity.
7. Issue Price.
8. Trade Date.
9. Specified Currency and whether the option to
elect payments in a Specified Currency applies
and if the Specified Currency is not U.S.
Dollars, the authorized denominations.
B-2
<PAGE>
10. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g.,
Commercial Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier, if any
iv) Interest Reset Dates, Interest
Reset Period and Interest
Determination Dates
v) Index Maturity
vi) maximum and minimum interest
rates, if any
(c) Indexed Notes
The applicable terms thereof
11. Interest Payment Date(s) and Regular Record Dates.
12. Optional Interest Reset Dates, if any, and Subsequent Interest
Periods, if any.
13. Extension Periods, if any, and
Final Maturity Dates, if any.
14. The date on or after which the Notes are
redeemable at the option of the Company or
repurchasable by the Company at the option
of the holder, and additional redemption
or repurchase provisions, if any.
15. Amortization schedule, if any.
16. Wire transfer information, if applicable.
17. Agent's commission (to be paid in the
form of a discount from the proceeds
remitted to the Company upon Settlement).
18. Whether such Certificated Note is issued
at an original issue discount ("OID"), and,
if so, the total amount of OID, the yield
to maturity and the initial accrual
period of OID.
19. Other provisions, if appropriate.
B. The Company will confirm the above Settlement information to the
Trustee by telex or facsimile. If the Company rejects an offer,
the Company will promptly notify such Agent by telephone.
B-3
<PAGE>
C. The Trustee will assign a Note number to the transaction and will
complete the first page of the preprinted 4-ply Note packet, the
form of which was previously approved by the Company, the Agents
and the Trustee.
D. The Trustee will deliver the Note (with the attached white
confirmation) and the yellow and blue stubs to the Agent. Such
Agent will acknowledge receipt of the Note by completing the yellow
stub and returning it to the Trustee.
E. Such Agent will cause to be wire transferred to a bank account
designated by the Company immediately available funds in U.S.
dollars in the amount of the principal amount of the Note, less the
applicable commission or discount, if any.
F. Such Agent will deliver the Note (with the attached white
confirmation) to the purchaser against payment in immediately
available funds in the amount of the principal amount of the Note.
Such Agent will deliver to the purchaser a copy of the most recent
Prospectus applicable to the Note with or prior to any written
offer of Notes, delivery of the Note and the confirmation and
payment by the purchaser for the Note.
G. Such Agent will obtain the acknowledgement of receipt for the Note
and Prospectus by the purchaser through the purchaser's completion
of the blue stub.
H. The Trustee will mail the pink stub to the Company's Treasurer.
Settlement Procedures Timetable for Certificated Notes
- ------------------------------------------------------
For offers accepted by the Company, Settlement procedures "A"
through "H" set forth above shall be completed on or before the respective
times set forth below:
Settlement
Procedure Time (New York)
------------ -------------------
A 5:00 PM on date of order
B 3:00 PM on the Business Day prior to Settlement date
C-D 12 noon on the Settlement date
E 2:15 PM on the Settlement date
F-G 3:00 PM on the Settlement date
H 5:00 PM on Business Day after the Settlement date
Failure
- -------
In the event that a purchaser of a Note shall either fail to accept
delivery of or make payment for such Note on the date fixed by the Company
for Settlement, such Agent will immediately notify the Trustee and the
Company's Treasurer by telephone, confirmed in writing, of such failure and
return the Note to the Trustee. Upon the Trustee's receipt of the Note from
the Agent, the Company will promptly return to the Agent an amount of
immediately available funds in U.S. dollars equal to any amount previously
transferred to the Company in respect of the Note pursuant to advances made
by the Agent. Such returns will be made on the Settlement date, if possible,
and in any event not later than 12 noon (New York City time) on the Business
Day following the Settlement date. The Company will reimburse such Agent on
an equitable basis for its loss of the use of the funds during the period
when the funds were credited to the account of the Company. Upon receipt of
the Note in respect of which the default occurred, the Trustee will mark the
Note "cancelled", make appropriate entries in its records and deliver the
Note to the Company with an appropriate debit advice. Such Agent will not be
entitled to any commission with respect to any Note which the purchaser does
not accept or make payment for.
B-4
<PAGE>
Redemption
- ----------
The Notes will be redeemable (if at all) prior to their Stated
Maturity on terms specified in the Prospectus Supplement and the applicable
Pricing Supplement.
Maturity
- --------
Notes will be paid at Maturity on terms specified in the Prospectus
Supplement and the applicable Pricing Supplement.
Procedures for Establishing the Terms of the Notes
- --------------------------------------------------
The Company and the Agents will discuss from time to time the rates
to be borne by the Notes that may be sold as a result of the solicitation of
offers by the Agents. Once any Agent has recorded any indication of interest
in Notes upon certain terms and communicated with the Company, if the Company
accepts an offer to purchase Notes upon such terms, the Company will prepare
a Pricing Supplement, in the form previously approved by the Agents,
reflecting the terms of such Notes and, after approval from such Agent, will
arrange to electronically transmit for filing with the SEC under the EDGAR
system a copy of such Pricing Supplement (together with the Prospectus, if
amended or supplemented) and will supply an appropriate number of copies of
the Prospectus, as then amended or supplemented, together with such Pricing
Supplement, to the Agent who presented such offer. See "Delivery of
Prospectus."
If the Company decides to post rates and a decision has been
reached to change interest rates, the Company will promptly notify each
Agent. Each Agent will forthwith suspend solicitation of purchases. At that
time, the Agents will recommend and the Company will establish rates to be so
"posted". Following establishment of posted rates and prior to the filing
described in the following sentence, the Agents may only record indications
of interest in purchasing Notes at the posted rates. Once any Agent has
recorded any indication of interest in Notes at the posted rates and
communicated with the Company, if the Company plans to accept an offer at the
posted rate, the Company will prepare a Pricing Supplement reflecting such
posted rates and, after approval from the Agents, will arrange to
electronically transmit for filing with the SEC under the EDGAR system a copy
of such Pricing Supplement (together with the Prospectus if amended or
supplemented) and will supply an appropriate number of copies of the
Prospectus, as then amended or supplemented, to the Agent who presented such
offer. See "Delivery of Prospectus."
Suspension of Solicitation; Amendment or Supplement
- ---------------------------------------------------
In the event that at the time the Agents, at the direction of the
Company, suspend solicitation of offers to purchase from the Company there
shall be any orders outstanding which have not been settled, the Company will
promptly advise the Agents and the Trustee whether such orders may be settled
and whether copies of the Prospectus as theretofore amended and/or
supplemented as in effect at the time of the suspension may be delivered in
connection with the settlement of such orders. The Company will have the
sole responsibility for such decision and for any arrangements which may be
made in the event that the Company determines that such orders may not be
settled or that copies of such Prospectus may not be so delivered.
B-5
<PAGE>
Delivery of Prospectus
- ----------------------
A copy of the Prospectus as most recently amended or supplemented
on the date of delivery thereof, together with the applicable Pricing
Supplement, must be delivered to a purchaser prior to or simultaneously with
the earlier of the delivery of (i) the written confirmation of a sale sent to
a purchaser or his agent and (ii) any Note purchased by such purchaser. The
Company shall ensure that the applicable Agent receives copies of the
Prospectus and each amendment or supplement thereto (including the applicable
Pricing Supplement) in such quantities and within such time limits as will
enable such Agent to deliver such confirmation or Note to a purchaser as
contemplated by these procedures and in compliance with the preceding
sentence. Copies of Pricing Supplements should be delivered to:
If to Lehman Brothers Inc.:
By facsimile delivery to:
Lehman Brothers Inc.
c/o ADP
Prospectus Services
536 Broad Hollow Road
Melville, New York 11747
Attention: Mike Ward
Telephone: (516) 254-7106
Facsimile: (516) 249-7492]
with a copy by hand to:
Lehman Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285-0900
Attention: Brunnie Vazquez
Telephone: (212) 526-8400
If to J.P. Morgan Securities Inc.:
By facsimile delivery to:
J.P. Morgan Securities Inc.
Medium-Term Note Desk
60 Wall Street - 3rd Floor
New York, New York 10260-0060
Telephone: (212) 648-0591
Facsimile: (212) 648-5907
B-6
<PAGE>
with a copy by hand to:
J.P. Morgan Securities Inc.
Medium-Term Note Desk
60 Wall Street - 3rd Floor
New York, New York 10260-0060
Telephone: (212) 648-0591
If, since the date of acceptance of a purchaser's offer, the Prospectus shall
have been supplemented solely to reflect any sale of Notes on terms different
from those agreed to between the Company and such purchaser or a change in
posted rates not applicable to such purchaser, such purchaser shall not
receive the Prospectus as supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect the terms of the Notes
being purchased by such purchaser and otherwise as most recently amended or
supplemented on the date of delivery of the Prospectus. The Trustee will
make all such deliveries with respect to all Notes sold directly by the
Company.
Authenticity of Signatures
- --------------------------
The Company will cause the Trustee to furnish the Agents from time
to time with the specimen signatures of each of the Trustee's officers,
employees and agents who have been authorized by the Trustee to authenticate
Notes, but the Agents will have no obligation or liability to the Company or
the Trustee in respect of the authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on any Note.
Advertising Costs
- -----------------
The Company will determine with the Agents the amount and nature of
advertising that may be appropriate in offering the Notes. Advertising
expenses incurred with the consent of the
Company will be paid by the Company.
B-7
<PAGE>
SPECIAL ADMINISTRATIVE PROCEDURES
FOR MULTI-CURRENCY NOTES
Settlements, payments and other matters relating to any Multi-
Currency Note shall be effected in a manner consistent with the terms of such
Multi-Currency Note, as set forth therein and in the Prospectus Supplement,
the applicable Pricing Supplement and the Indenture.
B-8
<PAGE>
SPECIAL ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
Each Note will be represented by either a Global Security (as
defined hereinafter) delivered to the Trustee, as agent for the Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by
DTC (a "Book-Entry Note") or a certificate delivered to the Holder thereof or
a Person designated by such Holder (a "Certificated Note"). An owner of a
Book-Entry Note will not be entitled to receive a certificate representing
such Note. In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representations from the Company and the Trustee to DTC dated as of
November __, 1996 and a Medium-Term Note Certificate Agreement between the
Trustee and DTC, dated as of August 21, 1989, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System
("SDFS"). Except as otherwise set forth in this Exhibit B, Book-Entry Notes
will be issued in accordance with the administrative procedures set forth
below.
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Fixed Rate Book-Entry Notes, the
Company will issue one or more Global Securities in fully
registered form without coupons (a "Global Security"), having
the same CUSIP number, and representing all of such Notes that
have the same Original Issue Date, interest rate and Stated
Maturity. Similarly, on any settlement date for one or more
Floating Rate Book-Entry Notes, the Company will issue one or
more Global Securities, having the same CUSIP number, and
representing all of such Notes that have the same Original
Issue Date, Interest Rate Basis, Initial Interest Rate,
Interest Payment Period, Interest Payment Dates, Index
Maturity, Spread or Spread Multiplier, if any, minimum
interest rate (if any), maximum interest rate (if any),
redemption provisions, if any, and Stated Maturity. No Global
Security will represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note. If the Global
Securities having a single CUSIP number exceed the maximum
principal amount specified by DTC, one Global Security will be
authenticated and issued to represent each such maximum
principal amount and an additional Global Security will be
authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" below).
Identification
Numbers: The Company will arrange, on or prior to commencement of a
program for the offering of Book-Entry Notes, with the CUSIP
Service Bureau of Standard & Poor's Ratings Group (the "CUSIP
Service Bureau") for the reservation of a series of CUSIP
numbers (including tranche numbers), consisting of
approximately 900 CUSIP numbers and relating to Global
Securities representing the Book-Entry Notes. The Trustee has
or will obtain from the CUSIP Service Bureau a written list of
such series of reserved CUSIP numbers and will deliver to the
Company and DTC such written list of 900 CUSIP numbers of such
series. The Trustee will assign CUSIP numbers to Global
Securities as described below under Settlement Procedure "B".
DTC will notify the CUSIP Service Bureau periodically of the
CUSIP numbers that the Trustee has assigned to Global
Securities. The Trustee will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers remain
unassigned to Global Securities, and if it deems necessary,
the Company will reserve additional CUSIP numbers for
assignment to Global Securities representing Book-Entry Notes.
Upon obtaining such additional CUSIP numbers the Trustee shall
deliver such additional CUSIP numbers to the Company and DTC.
B-9
<PAGE>
Registration: Each Global Security will be registered in the name of Cede &
Co., as nominee for DTC, on the Security Register maintained
under the Indenture. The beneficial owner of a Book-Entry
Note (or one or more indirect participants in DTC designated
by such owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with the
book-entry system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions provided by
such Participants, a credit balance with respect to such Note
in the account of such Participants. The ownership interest
of such beneficial owner in such Note will be recorded through
the records of such Participants or through the separate
records of such Participants and one or more indirect
participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in
certain cases, one or more indirect participants in DTC)
acting on behalf of beneficial transferors and transferees of
such Note.
Consolidation and
Exchange: The Trustee may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation specifying (i) the
CUSIP numbers of two or more Outstanding Global Securities
that represent (A) Fixed Rate Book-Entry Notes having the same
Original Issue Date, interest rate and Stated Maturity and
with respect to which interest has been paid to the same date
or (B) Floating Rate Book-Entry Notes having the same Interest
Rate Basis, Original Issue Date, Initial Interest Rate,
Interest Payment Dates, Index Maturity, Spread or Spread
Multiplier, if any, minimum interest rate (if any), maximum
interest rate (if any), redemption provisions, if any, and
Stated Maturity and with respect to which interest has been
paid to the same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and at least
thirty days before the next Interest Payment Date for such
Book-Entry Notes, on which such Global Securities shall be
exchanged for one or more replacement Global Securities and
(iii) a single new CUSIP number, obtained from the Company, to
be assigned to such replacement Global Securities. Upon
receipt of such a notice, DTC will send to its participants
(including the Trustee) a written reorganization notice to the
effect that such exchange will occur on such date. Prior to
the specified exchange date, the Trustee will deliver to the
CUSIP Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the Global Securities
to be exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global
Securities for one or more Global Securities bearing the
single new CUSIP number, and the CUSIP numbers of the
exchanged Global Securities will, in accordance with CUSIP
Service Bureau procedures, be cancelled and not immediately
reassigned. If the Global Securities to be exchanged exceed
the maximum principal amount specified by DTC, one Global
Security will be authenticated and issued to represent each
such maximum principal amount of the exchanged Global
Securities and an additional Global Security will be
authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" below).
B-10
<PAGE>
Denominations: Unless otherwise specified in the Prospectus Supplement or the
applicable Pricing Supplement, Book-Entry Notes will be issued
in principal amounts of $1,000 or any integral multiple
thereof.
Interest: Interest on each Book-Entry Note will accrue and be payable on
terms specified in the Prospectus Supplement and the
applicable Pricing Supplement. Standard & Poor's Ratings
Group will use the information received in the pending deposit
message described under Settlement Procedure "C", below in
order to include the amount of any interest payable and
certain other information regarding the related Global
Security in the appropriate weekly bond report published by
Standard & Poor's Ratings Group.
Promptly after each Interest Determination Date for Floating
Rate Notes, the Company will notify the Trustee, and the
Trustee in turn will notify Standard & Poor's Ratings Group,
of the interest rates determined on such Interest
Determination Date.
B-11
<PAGE>
Payments of Principal and
Interest: Payments of Interest Only. Promptly after each Regular Record
Date, the Trustee will deliver to the Company and DTC a
written notice specifying by CUSIP number the amount of
interest to be paid on each Global Security on the following
Interest Payment Date (other than an Interest Payment Date
coinciding with Maturity) and the total of such amounts. DTC
will confirm the amount payable on each Global Security on
such Interest Payment Date by reference to the daily bond
reports published by Standard & Poor's Ratings Group. The
Company will pay to the Trustee, as paying agent, the total
amount of interest due on such Interest Payment Date (other
than at Maturity), and the Trustee will pay such amount to DTC
at the times and in the manner set forth below under "Manner
of Payment".
Payments at Maturity. On or about the first Business Day of
each month, the Trustee will deliver to the Company and DTC a
written list of principal and interest to be paid on each
Global Security maturing in the following month. The Company,
the Trustee and DTC will confirm the amounts of such principal
and interest payments with respect to each such Global
Security on or about the fifth Business Day preceding the
Maturity of such Global Security. The Company will pay to the
Trustee, as the paying agent, the principal amount of such
Global Security, together with interest due at such Maturity.
The Trustee will pay such amount to DTC at the times and in
the manner set forth below under "Manner of Payment".
Manner of Payment. The total amount of any principal and
interest due on Global Securities on any Interest Payment Date
or at Maturity shall be paid by the Company to the Trustee in
funds available for use by the Trustee as of 9:30 A.M. (New
York City time) on such date. The Company will make such
payment on such Global Securities by wire transfer to the
Trustee, or, if the Company so directs, by instructing the
Trustee to withdraw funds from an account maintained by the
Company at the Trustee. The Company will confirm such
instructions in writing to the Trustee. For maturity,
redemption or any other principal payments: prior to 10 A.M.
(New York City time) on such date or as soon as possible
thereafter, the Trustee will make such payments to DTC in same
day funds in accordance with DTC's Same Day Funds Settlement
Paying Agent Operating Procedures. For interest payments:
the Trustee will make such payments to DTC in accordance with
existing arrangements between DTC and the Trustee. DTC will
allocate such payments to its participants in accordance with
its existing operating procedures. Neither the Company
(either as issuer or as Paying Agent) nor the Trustee shall
have any direct responsibility or liability for the payment by
DTC to such Participants of the principal of and interest on
the Book-Entry Notes.
B-12
<PAGE>
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other Person
responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
Settlement
Procedures: Settlement Procedures with regard to each Book-Entry Note
which will be registered in the name of the nominee of DTC
(unless otherwise indicated in the applicable Pricing
Supplement, "Cede & Co.") sold by the Company through an
Agent, as agent, shall be as follows:
A. Such Agent will advise the Company by telex or
facsimile of the following settlement information:
1. Principal amount of the Note (and, if multiple
Notes are to be issued, denominations thereof).
2. Settlement date (Original Issue Date).
3. Stated Maturity.
4. Issue Price.
5. Trade Date.
6. Specified Currency and whether the option to
elect payments in a Specified Currency applies
and if the Specified Currency is not U.S.
Dollars, the authorized denominations.
7. Interest rate:
(a) Fixed Rate Notes:
i) interest rate
B-13
<PAGE>
(b) Floating Rate Notes:
i) Interest Rate Basis (e.g., Commercial
Paper Rate)
ii) Initial Interest Rate
iii) Spread or Spread Multiplier, if any
iv) Interest Reset Dates, Interest Reset
Period and Interest Determination
Dates
v) Index Maturity
vi) maximum and minimum interest rates, if
any
(c) Currency Indexed Notes
The applicable terms thereof
8. Interest Payment Date(s) and Regular Record
Dates.
9. Optional Interest Reset Dates, if any, and
Subsequent Interest Periods, if any.
10. Extension Periods, if any, and Final Maturity
Dates, if any.
11.The date on or after which the Notes are
redeemable at the option of the Company or
repurchasable by the Company at the option of
the holder, and additional redemption or
repurchase provisions, if any.
12. Amortization schedule, if any.
13.Wire transfer information, if applicable.
14.Agent's Commission (to be paid in the form of a
discount from the proceeds remitted to the
Company upon Settlement).
15.Whether such Book-Entry Note is issued at an
original issue discount ("OID"), and, if so, the
total amount of OID, the yield to maturity and
the initial accrual period of OID.
B. The Company will advise the Trustee by electronic
transmission of the information set forth in
Settlement Procedure A above and the name of the
applicable Agent. Each such communication by the
Company shall constitute a representation and
warranty by the Company to the Trustee and each
Agent that (i) such Note is then, and at the time of
issuance and sale thereof will be, duly authorized
for issuance and sale by the Company, (ii) such
Note, and the Global Security representing such
Note, will conform with the terms of the Indenture
and (iii) upon authentication and delivery of such
Global Security, the aggregate initial offering
price of all Notes issued under the Indenture will
not exceed the maximum aggregate amount then
authorized (except for Book-Entry Notes represented
by Global Securities authenticated and delivered in
exchange for or in lieu of Global Securities
pursuant to the Indenture and except for
Certificated Notes authenticated and delivered upon
registration of transfer of, in exchange for, or in
lieu of Certificated Notes pursuant to any such
Section).
B-14
<PAGE>
C. The Trustee will assign a CUSIP number to the Global
Security representing such Note and enter a pending
deposit message through DTC's Participant Terminal
System, providing the following settlement
information to DTC, such Agent and Standard & Poor's
Ratings Group:
1. The applicable information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note
or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Note,
number of days by which such date succeeds the
related "DTC Regular Record Date" (which term
means the Regular Record Date except in the case
of floating rate notes which reset daily or
weekly in which case it means the date 5
calendar days immediately preceding the Interest
Payment Date) and amount of interest payable on
such Interest Payment Date per $1,000 of
principal amount of such Note.
4. Frequency of interest payments (monthly,
semiannually, quarterly, etc.).
5. CUSIP number of the Global Security representing
such Note.
6. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at
such time).
D. Such Agent will deliver to the purchaser a copy of
the most recent Prospectus applicable to the Note
with or prior to any written offer of Notes and the
confirmation and payment by the purchaser of the
Note.
B-15
<PAGE>
Such Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
E. The Trustee, as Trustee, will complete and
authenticate the note certificate evidencing the
Global Security representing such Book-Entry Note.
F. DTC will credit such Note to the Trustee's
participant account at DTC.
G. The Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to the Trustee's participant
account and credit such Note to such Agent's
participant account and (ii) debit such Agent's
settlement account and credit the Trustee's
settlement account for an amount equal to the price
of such Note less such Agent's commission. The
entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC
that (i) the Global Security representing such
Book-Entry Note has been issued and authenticated
and (ii) the Trustee is holding such Global Security
pursuant to the Medium-Term Note Certificate
Agreement between the Trustee and DTC (the
"Certificate Agreement").
H. Such Agent will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC
(i) to debit such Note to such Agent's participant
account and credit such Note to the participant
accounts of the Participants with respect to such
Note and (ii) to debit the settlement accounts of
such Participants and credit the settlement account
of such Agent for an amount equal to the price of
such Note.
I. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement
date.
J. The Trustee will transfer by wire to an account
designated by the Company, or, if the Company
so directs, credit to an account of the Company
maintained at the Trustee, funds available for
immediate use in the amount transferred to
the Trustee in accordance with Settlement
Procedure "G".
B-16
<PAGE>
Settlement Procedures
Timetable: For orders of Book-Entry Notes solicited by an Agent, as
agent, and accepted by the Company for settlement, Settlement
Procedures "A" through "J" set forth above shall be completed
as soon as possible but not later than the respective times
(New York City time) set forth below:
Settlement.
Procedure Time
----------- ------
A 11:00 A.M. on the sale date
B 12 Noon on the sale date
C 2:00 P.M. on the sale date
D Day after sale date
E 3:00 P.M. on day before Settlement date
F 10:00 A.M. on Settlement date
G-H 2:00 P.M. on Settlement date
I 4:45 P.M. on Settlement date
J 5:00 P.M. on Settlement date
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later than 11:00 A.M.,
12 Noon and 2:00 P.M., as the case may be, on the first
Business Day after the sale date. If the initial interest
rate for a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no
later than 12:00 Noon and 2:00 P.M., respectively, on the
second Business Day before the Settlement date. Settlement
Procedure "J" is subject to extension in accordance with any
extension of Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect on the
Settlement date.
If Settlement of a Book-Entry Note is rescheduled or canceled,
the Trustee will deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to such effect by no
later than 2:00 P.M. on the Business Day immediately preceding
the scheduled Settlement date.
Failure to
Settle: If the Trustee has not entered an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement Procedure
"G", then, upon written request (which may be effected by
facsimile transmission) of the Company, the Trustee shall
deliver to DTC, through DTC's Participant Terminal System, as
soon as practicable but no later than 2:00 P.M. on any
Business Day, a withdrawal message instructing DTC to debit
such Note to the Trustee's participant account. DTC will
process the withdrawal message, provided that the Trustee's
participant account contains a principal amount of the Global
Security representing such Note that is at least equal to the
principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Notes represented
by a Global Security, the Trustee will mark such Global
Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company.
The CUSIP number assigned to such Global Security shall, in
accordance with CUSIP Service Bureau procedures, be canceled
and not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security, the Trustee
will exchange such Global Security for two Global Securities,
one of which shall represent such Book-Entry Note or Notes and
shall be canceled immediately after issuance and the other of
which shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and shall bear
the CUSIP number of the surrendered Global Security.
B-17
<PAGE>
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent for such
Note may enter SDFS deliver orders through DTC's Participant
Terminal System debiting such Book-Entry Note free to such
Agent's participant account and crediting such Book-Entry Note
free to the participant account of the Trustee and shall
notify the Trustee and the Company thereof. Thereafter, the
Trustee (i) will immediately notify the Company, once the
Trustee has confirmed that such Book-Entry Note has been
credited to its participant account, and the Company shall
immediately transfer by Fed wire (immediately available funds)
to such Agent an amount equal to the amount with respect to
such Book-Entry Note which was previously sent by wire
transfer to the account of the Company in accordance with
Settlement Procedure "J", and (ii) the Trustee will deliver
the withdrawal message and take the related actions described
in the preceding paragraph. Such debits and credits will be
made on the Settlement date, if possible, and in any event not
later than 5:00 P.M. on the following Business Day. If such
failure shall have occurred for any reason other than a
default by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then the
Company will reimburse the Agent on an equitable basis for the
loss of the use of the funds during the period when they were
credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "E", for the
authentication and issuance of a Global Security representing
the other Book-Entry Notes to have been represented by such
Global Security and will make appropriate entries in its
records.
B-18
<PAGE>
Trustee Not to
Risk Funds: Nothing herein shall be deemed to require the Trustee to risk
or expend its own funds in connection with any payment to the
Company, DTC, the Agents, or the purchaser, it being
understood by all parties that payments made by the Trustee to
the Company, DTC, the Agents, or the purchaser shall be made
only to such extent that funds are provided to the Trustee for
such purpose. Similarly, nothing herein shall alter any duty,
or limit or diminish any right or immunity, of the Trustee
under the Indenture.
B-19
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
------------------
Polaroid Corporation _______________, 19__
549 Technology Square
Cambridge, MA 02139
Attention: ________________
Each of the undersigned purchaser(s) (the "Purchaser(s)") agree[s]
to purchase Notes, as described in the Distribution Agreement dated November
__, 1996 (as it may be supplemented or amended from time to time, the
"Distribution Agreement"), in the principal amount set opposite such
Purchaser's name on Schedule 1 hereto, such Notes to have the following
terms:
Aggregate Principal Amount [$]_________________________
Stated Maturity: _________________________
Specified Currency: _________________________
Interest Rate: ________%
Discount: ________% of Principal Amount
Aggregate Price to be
paid to Company
(in immediately
available funds): [$]_________________________
Time of Delivery: _________________________
Other Terms: _________________________
Except as otherwise expressly provided herein, all terms used
herein which are defined in the Distribution Agreement and not otherwise
defined herein shall have the meanings set forth in the Distribution
Agreement. The terms "Agent" or "Agents", as used in the Distribution
Agreement, shall be deemed to refer to the undersigned Purchaser(s) for
purposes of this Agreement.
Our obligation to purchase Notes hereunder is subject to the
continued accuracy of your representations and warranties contained in the
Distribution Agreement and to your performance and observance of all
applicable covenants and agreements contained therein, including, without
limitation, your obligations pursuant to Section 6 and Section 7 thereof.
Our obligation hereunder is subject to the conditions set forth in Section 5
of the Distribution Agreement [and to the further condition that we shall
receive (a) the opinions required to be delivered pursuant to Section 5(e) of
the Distribution Agreement, (b) the certificate required to be delivered
pursuant to Section 5(f) of the Distribution Agreement, (c) the letter
referred to in Section 5(g), in each case dated as of the above Time of
Delivery and (d) and such further information, certificates and documents as
the Purchaser(s) or counsel to the Purchaser(s) may reasonably request.] 1/
The parties to any Purchase Agreement may agree that provisions relating to
the payment of legal fees may be included in such Purchase Agreement.
In further consideration of our agreement hereunder, you agree that
between the date hereof and the above Time of Delivery, without the prior
written consent of Lehman Brothers Inc. (which consent shall not be
unreasonably withheld), you will not offer or sell, or enter into any
agreement to sell, any debt securities of the Company, other than borrowings
under your revolving credit agreements and lines of credit, the private
placement of securities and issuances of your commercial paper or other
issuances of Notes.
_______________________
1/ As agreed at the time of entering into the Purchase Agreement.
<PAGE>
We may terminate this Agreement, in our absolute discretion, by
notice given to and received by the Company prior to delivery of and payment
for the Securities, if prior to that time (a) a downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations, (b) any such organization shall have publicly announced that is
has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities, (c) trading in securities
generally on the New York Stock Exchange, the Chicago Board Options Exchange
or the over-the-counter market shall have been suspended or materially
limited or minimum prices shall have been established on one or more of such
exchanges or such market by the Commission or such exchange or other
regulatory body or governmental authority having jurisdiction, (d) a banking
moratorium shall have been declared by United States federal or New York
State authorities, (e) the United States shall have become engaged in
hostilities or there shall have been an escalation in hostilities involving
the United States or a declaration of a national emergency or war shall have
been made by the United States, (f) there shall have been such a material
adverse change in national or international political, financial or economic
conditions, national or international equity markets or currency exchange
rates or controls as to make it, in the judgment of the Purchaser(s),
inadvisable or impracticable to proceed with the payment for and delivery of
the Notes, or (g)(i) the Company or any of its subsidiaries shall have
sustained since the date of the latest [audited] financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall have been
any change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is, in the judgment of the Purchaser(s), so material and adverse
as to make it impracticable or inadvisable to proceed with the offering or
the delivery of the Notes on the terms and in the manner contemplated in the
Prospectus.
If the parties to any Purchase Agreement so agree, the following
provisions shall be included in such Purchase Agreement:
"If, at any Time of Delivery, any Purchaser
defaults in the performance of its obligations under
this Agreement, the remaining non-defaulting
Purchasers shall be obligated to purchase the Notes which the defaulting
Purchaser agreed but failed to purchase at such Time of Delivery, in the
respective proportions which the principal amount of Notes set opposite the
name of each remaining non-defaulting Purchaser in Schedule 1 hereto bears to
the aggregate principal amount of Notes set opposite the names of all the
remaining non-defaulting Purchasers in Schedule 1 hereto; provided, however,
that the remaining non-defaulting Purchasers shall not be obligated to
purchase any Notes at such Time of Delivery if the aggregate principal amount
of Notes which the defaulting Purchaser or Purchasers agreed but failed to
purchase exceeds 9.09% of the total principal amount of Notes to be purchased
at such Time of Delivery and any remaining non-defaulting Purchaser shall not
be obligated to purchase more than 110% of the aggregate principal amount of
Notes which it agreed to purchase at such Time of Delivery pursuant to this
Agreement. If the foregoing maximums are exceeded, the remaining non-
defaulting Purchasers, or those other Purchasers or underwriters who so
agree, shall have the right, but shall not be obligated, to purchase, in such
proportions as may be agreed upon among them, all the Notes to be purchased
at such Time of Delivery. If the remaining Purchasers or other Purchasers or
underwriters do not elect to purchase the Notes which the defaulting
Purchaser or Purchasers agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting Purchaser or
the Company, except that the Company will continue to be liable for the
payment of expenses to any non-defaulting Purchaser as set forth in Section 4
of the Distribution Agreement. As used in this Agreement, the term
'Purchaser' includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant
to this provision, purchases Notes which a defaulting Purchaser agreed but
failed to purchase.
C-2
<PAGE>
"Nothing contained herein shall relieve a defaulting Purchaser of
any liability it may have to the Company for damages caused by its
default. If other Purchasers are obligated or agree to purchase the Notes of
a defaulting Purchaser, either the Purchasers or the Company may postpone the
Time of Delivery for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Purchasers may be necessary in the Registration Statement or the Prospectus
or in any other document or arrangement."
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
[Insert name(s) of Purchaser(s)]
By _________________________
[Title]
Accepted: 19__
Polaroid Corporation
By _________________________
[Title]
C-3
<PAGE>
EXHIBIT D
Polaroid Corporation
Medium-Term Notes, Series A
[FOREIGN CURRENCY] [INDEXED NOTE]
AMENDMENT NO. ____________ TO DISTRIBUTION AGREEMENT,
DATED NOVEMBER __, 1996, AS AMENDED
[Insert Title of Foreign Currency and, in the case of Indexed Notes, the
Indexed Basis]
The undersigned hereby agree that for the purposes of the issue and
sale of Notes denominated in [title of currency or currency unit] (the
"Specified Currency") (and indexed to [title of index basis] (the "Index
Basis")] pursuant to the Distribution Agreement, dated November __, 1996 as
it may be amended (the "Distribution Agreement") among Polaroid Corporation,
Lehman Brothers Inc. and J.P. Morgan Securities Inc., the following additions
and modifications shall be made to the Distribution Agreement. The additions
and modifications adopted hereby shall be of the same effect for the sale
under the Distribution Agreement of all Notes denominated in the Specified
Currency [and indexed to the Index Basis], whether offered on an agency or
principal basis, but shall be of no effect with respect to Notes denominated
in any currency or currency unit other than the Specified Currency.
Except as otherwise expressly provided herein, all terms used
herein which are defined in the Distribution Agreement shall have the same
meanings as in the Distribution Agreement. The term[s] Agent [or Agents], as
used in the Distribution Agreement, shall be deemed to refer [only] to the
undersigned Agent[s] for purposes of this Amendment.
[Insert appropriate additions and modifications to the Distribution
Agreement, for example, to opinions of counsel, conditions to obligations and
settlement procedures, etc., in each case as mutually agreed by the parties]
_______________, 19__
Polaroid Corporation
By_________________________
Name:
Title:
[Name(s) of Agent(s) participating in the offering of Notes in the Specified
Currency]
By_________________________
Name:
Title:
=============================================================================
POLAROID CORPORATION
and
STATE STREET BANK AND TRUST COMPANY
as Trustee
-------------------
INDENTURE
Dated as of November [ ], 1996
-------------------
Providing for the Issuance of
Debt Securities in Series
=============================================================================
<PAGE>
TABLE OF CONTENTS 1/
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions 1
SECTION 102. Compliance Certificates and Opinions 9
SECTION 103. Form of Documents Delivered to Trustee 10
SECTION 104. Acts of Holders 10
SECTION 105. Notices, etc., to Trustee and Company 12
SECTION 106. Notice to Holders; Waiver 12
SECTION 107. Conflict with Trust Indenture Act 13
SECTION 108. Effect of Headings and Table of Contents 13
SECTION 109. Successors and Assigns 13
SECTION 110. Separability Clause 13
SECTION 111. Benefits of Indenture 13
SECTION 112. Governing Law 14
SECTION 113. Legal Holidays 14
SECTION 114. Moneys of Different Currencies To Be Segregated 14
SECTION 115. Payment To Be in Proper Currency 14
SECTION 116. Language of Notices, etc 14
SECTION 117. Changes in Exhibits 15
ARTICLE TWO
Issuance of Securities
SECTION 201. Creation of Securities in Amount Unlimited 15
________________________
1/ This table of contents shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
SECTION 202. Documents Required for Issuance of Each
Series of Securities Other than
Medium-Term Debt Securities 15
ARTICLE THREE
Issuance of Medium-Term Debt Securities
SECTION 301. Documents Required for Issuance of Each
Series of Medium-Term Debt Securities 19
SECTION 302. Form of Medium-Term Debt Securities 23
ARTICLE FOUR
The Securities
SECTION 401. Form and Denomination 23
SECTION 402. Execution, Delivery, Dating and Authentication 24
SECTION 403. Temporary Securities 25
SECTION 404. Registration, Registration of Transfer and Exchange 27
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities 30
SECTION 406. Payment of Interest; Interest Rights Preserved 31
SECTION 407. Persons Deemed Owners 32
SECTION 408. Cancelation 32
SECTION 409. Computation of Interest 33
SECTION 410. Currency and Manner of Payment in
Respect of Securities 33
SECTION 411. Securities in Global Form 37
SECTION 412. Registered Global Notes 38
ARTICLE FIVE
Satisfaction and Discharge
SECTION 501. Satisfaction and Discharge of
Indenture in Respect of Any Series of Securities 40
SECTION 502. Application of Trust Money 41
SECTION 503. Satisfaction, Discharge and Defeasance
of Securities of Any Series 41
SECTION 504. Reinstatement 43
SECTION 505. Definitions 43
Contents, P. 2
<PAGE>
ARTICLE SIX
Remedies
SECTION 601. Events of Default 44
SECTION 602. Acceleration of Maturity; Rescission and Annulment 45
SECTION 603. Collection of Indebtedness and Suits for
Enforcement by Trustee 46
SECTION 604. Trustee May File Proofs of Claim 47
SECTION 605. Trustee May Enforce Claims Without Possession of
Securities 47
SECTION 606. Application of Money Collected 47
SECTION 607. Limitation on Suits 48
SECTION 608. Unconditional Right of Holders To Receive Principal,
Premium and Interest 48
SECTION 609. Restoration of Rights and Remedies 49
SECTION 610. Rights and Remedies Cumulative 49
SECTION 611. Delay or Omission Not Waiver 49
SECTION 612. Control by Holders 49
SECTION 613. Waiver of Past Defaults 49
SECTION 614. Undertaking for Costs 50
SECTION 615. Waiver of Stay or Extension Laws 50
ARTICLE SEVEN
The Trustee
SECTION 701. Certain Duties and Responsibilities 50
SECTION 702. Notice of Defaults 51
SECTION 703. Certain Rights of Trustee 51
SECTION 704. Not Responsible for Recitals or
Issuance of Securities 52
SECTION 705. May Hold Securities 52
SECTION 706. Money Held in Trust 52
SECTION 707. Compensation and Reimbursement 52
SECTION 708. Disqualification; Conflicting Interests 53
SECTION 709. Corporate Trustee Required; Eligibility 53
Contents, P. 3
<PAGE>
SECTION 710. Resignation and Removal; Appointment of Successor 54
SECTION 711. Acceptance of Appointment by Successor 55
SECTION 712. Merger, Conversion, Consolidation or Succession to
Business 56
SECTION 713. Preferential Collection of Claims Against Company 56
SECTION 714. Judgment Currency 56
SECTION 715. Appointment of Authenticating Agent 57
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company
SECTION 801. Company To Furnish Trustee Names and
Addresses of Holders 58
SECTION 802. Preservation of Information; Communications to
Holders 59
SECTION 803. Reports by Trustee 59
SECTION 804. Reports by Company 59
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer
SECTION 901. Company May Consolidate, etc., Only on
Certain Terms 60
SECTION 902. Successor Corporation Substituted 60
ARTICLE TEN
Supplemental Indentures
SECTION 1001. Supplemental Indentures Without Consent of Holders 61
SECTION 1002. Supplemental Indentures with Consent of Holders 62
SECTION 1003. Execution of Supplemental Indentures 63
SECTION 1004. Effect of Supplemental Indentures 63
SECTION 1005. Conformity with Trust Indenture Act 63
SECTION 1006. Reference in Securities to Supplemental Indentures 63
Contents, P. 4
<PAGE>
ARTICLE ELEVEN
Covenants
SECTION 1101. Payment of Principal, Premium and Interest 64
SECTION 1102. Maintenance of Office or Agency 64
SECTION 1103. Money for Securities Payments To Be Held in Trust 65
SECTION 1104. Restrictions on Secured Debt 66
SECTION 1105. Restrictions on Sales and Leasebacks 67
SECTION 1106. Statement by Officers as to Default 68
SECTION 1107. Waiver of Certain Covenants 68
SECTION 1108. Additional Amounts 68
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of Article 69
SECTION 1202. Election To Redeem; Notice to Trustee 69
SECTION 1203. Selection by Trustee of Securities To Be Redeemed 70
SECTION 1204. Notice of Redemption 70
SECTION 1205. Deposit of Redemption Price 71
SECTION 1206. Securities Payable on Redemption Date 71
SECTION 1207. Securities Redeemed in Part 72
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article 72
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities 72
SECTION 1303. Redemption of Securities for Sinking Fund 72
ARTICLE FOURTEEN
Meetings of Holders of Securities
SECTION 1401. Purposes for Which Meetings May Be Called 73
SECTION 1402. Call, Notice and Place of Meetings 73
SECTION 1403. Persons Entitled To Vote at Meetings 73
SECTION 1404. Quorum; Action 73
Contents, P. 5
<PAGE>
SECTION 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings 74
SECTION 1406. Counting Votes and Recording Action of Meetings 75
EXHIBIT A Forms of Debt Securities
EXHIBIT B.1 Form of Certificate to be given by Euro-clear and
CEDEL S.A. in connection with the Exchange of a portion
of Temporary Global Security
EXHIBIT B.2 Form of Certificate to be given by Person entitled
to receive Bearer Security
Contents, P.6
<PAGE>
INDENTURE dated as of November [ ], 1996, between POLAROID
CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its
principal office at 549 Technology Square, Cambridge, MA 02139, and
STATE STREET BANK AND TRUST COMPANY, a trust company duly organized and
existing under the laws of the Commonwealth of Massachusetts, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned
to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally within an Article of this Indenture, may be
defined in that Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
<PAGE>
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable and at any date as of which the amount thereof
is to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining primary term thereof, discounted
from the respective due dates thereof to such date at the weighted average
Yield to Maturity of the Securities outstanding hereunder, such average being
weighted by the principal amount of the Securities or, in the case of
Original Issue Discount Securities, the amount that would become due
hereunder in the event such Securities were declared due and payable on the
date of the determination. The net amount of rent required to be paid under
any such lease for any such period shall be the aggregate amount of the rent
payable by the lessee with respect to such period after excluding amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. In the case of any lease
which is terminable by the lessee upon the payment of a penalty, such net
amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 715 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the
place of publication, printed in the official language of the country of
publication and customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays. Whenever successive weekly
publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise expressly provided herein) on the same or
different days of the week and in the same or different Authorized
Newspapers.
"Bearer Security" means any Security which is not registered in the
Security Register as to both principal and interest (including without
limitation any Security in temporary or definitive global bearer form).
"Board of Directors" means either the board of directors of the Company,
any officer of the Company duly authorized to act in the name of or on behalf
of that board or any committee consisting of one or more persons, who need
not be directors, duly authorized to act in the name of or on behalf of that
board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the
Board of Directors (as hereinabove defined) and to be in full force and
effect on the date of such certification.
"Business Day", when used with respect to any Place of Payment or place of
publication, means each day on which commercial banks and foreign exchange
markets settle payments in such Place of Payment or place of publication, or
as otherwise specified for a series of Securities pursuant to Section 202 or
Section 301, as the case may be. Unless otherwise specified for a series of
Securities pursuant to Section 202 or Section 301, as the case may be, when
used with respect to Securities bearing interest at a rate or rates
determined by reference to London interbank offered rates for deposits in
U.S. Dollars, "Business Day" shall exclude any day on which commercial banks
and foreign exchange markets do not settle payments in London.
-2-
<PAGE>
"Capital Stock", as applied to the stock of any corporation, means the
capital stock of every class whether now or hereafter authorized, regardless
of whether such capital stock shall be limited to a fixed sum or percentage
with respect to the rights of the holders thereof to participate in dividends
and in the distribution of assets upon the voluntary or involuntary
liquidation, dissolution or winding up of such corporation.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 403.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company"
shall mean such successor corporation.
"Company Request", "Request of the Company", "Company Order" or "Order of
the Company" means a written request or order signed in the name of the
Company by its Chairman of the Board, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Component Currency" has the meaning specified in Section 410(i).
"Consolidated Net Tangible Assets" means total assets (less applicable
reserves and other properly deductible items) after deducting therefrom
(a) all current liabilities and (b) all goodwill, trade names, trademarks,
patents, organization expenses and other like intangibles, all as set forth
on the most recent balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with generally accepted accounting
principles.
"Conversion Date" has the meaning specified in Section 410(e).
"Conversion Rate" has the meaning specified in Section 714.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered,
which office at the date hereof is located at 2 International Place, Fourth
Floor, Boston, MA 02110, Attention: Corporate Trust Department, except that
with respect to the presentation of Securities (or Coupons, if any,
representing an installment of interest) for payment or for registration of
transfer and exchange, such term shall mean the office or the agency of the
Trustee in New York, New York at which at any particular time its corporate
agency business shall be conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
Security.
-3-
<PAGE>
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 406.
"Discharged" has the meaning specified in Section 505.
"Dollar" means the coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private
debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 410(h).
"Dollar Equivalent of the Foreign Currency" has the meaning specified in
Section 410(g).
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European Communities.
"Euro-clear" means the operator of the Euro-clear System.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 601.
"Exchange Rate Agent" means the entity appointed by the Company pursuant to
Section 104(g). Unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, the Luxembourg Stock Exchange shall act as
Exchange Rate Agent for purposes of Section 410 in the case of each series of
Securities listed on the Luxembourg Stock Exchange.
"Exchange Rate Officers' Certificate" means a telecopy or tested telex or a
certificate setting forth (i) the applicable Official Currency Unit Exchange
Rate and (ii) the Dollar or Foreign Currency or currency unit amounts of
principal, premium, if any, and interest, if any, respectively (on an
aggregate basis and on the basis of a Security having a principal amount of
1,000 units in the relevant currency or currency unit), payable on the basis
of such Official Currency Unit Exchange Rate, sent (in the case of a telecopy
or telex) or executed (in the case of a certificate) by the Controller or any
Assistant Controller or by the Treasurer or any Assistant Treasurer of the
Company and delivered to the Trustee; such telecopy, tested telex or
certificate need not comply with Section 102.
"Finance Subsidiary" means a Subsidiary of the Company engaged primarily in
financing or assisting in financing the acquisition or disposition of
products of the Company or of a Subsidiary of the Company by dealers,
distributors or customers.
"Foreign Currency" means a currency issued by the government of any country
other than the United States of America.
"Foreign Government Securities" has the meaning specified in Section 505.
"Funded Debt" means (a) all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the determination
is made or having a maturity of 12 months or less but which is by its terms
renewable or extendible beyond 12 months from such date at the option of the
borrower and (b) rental obligations payable more than 12 months from such
date under leases which are capitalized in accordance with generally accepted
accounting principles (such rental obligations to be included as Funded Debt
at the amount so capitalized and to be included for the purposes of the
definition of Consolidated Net Tangible Assets both as an asset and as Funded
Debt at the amount so capitalized).
-4-
<PAGE>
"Holder" or "holder" means, with respect to a Registered Security, the
Person in whose name at the time a particular Registered Security is
registered in the Security Register and, with respect to a Bearer Security
and/or a Coupon, the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 202 or Section 301, as the case may be.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" has the meaning specified in Section 410(i).
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment at the option of
the Holder, required repurchase or otherwise.
"Medium-Term Debt Securities" has the meaning specified in Section 301.
"Medium-Term Debt Securities Certificate" shall mean a certificate signed
by the Chairman of the Board, the President, any Vice President, the
Treasurer, the Controller, any Secretary or Assistant Treasurer, Assistant
Controller or Assistant Secretary of the Company, or any other employee of
the Company designated by a Board Resolution as having the authority to
deliver a Medium-Term Debt Securities Certificate hereunder.
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President, and by the Treasurer, the
Controller, the Secretary or any Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee. Each such
Officers' Certificate shall contain the statements provided in Section 102 if
and to the extent required by the provisions of such Section.
"Official Currency Unit Exchange Rate" means, with respect to any payment
to be made hereunder, the exchange rate between the relevant currency unit
and the currency or currency unit of payment calculated by the Exchange Rate
Agent for the Securities of the relevant series (in the case of ECU, reported
by the Commission of the European Communities and on the date hereof based on
the rates in effect at 2:30 p.m., Brussels time, on the exchange markets of
the Component Currencies of ECU), on the Business Day (in the city in which
such Exchange Rate Agent has its principal office) immediately preceding
delivery of any Exchange Rate Officers' Certificate.
-5-
<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Company. Each Opinion of Counsel shall contain the
statements provided in Section 102 if and to the extent required by the
provisions of such Section.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 602.
"Outstanding" or "outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered or
deemed delivered to the Trustee for cancelation;
(ii) Securities for whose payment or redemption money in the necessary
amount and in the required currency or currency unit has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 405 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
whether a quorum is present at a meeting of Holders of Outstanding Securities
or the number of votes entitled to be cast by each Holder of a Security in
respect of such Security at any such meeting, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 602, (ii) the
principal amount of a Security denominated in a Foreign Currency or currency
unit shall be the Dollar equivalent obtained by converting the specified
Foreign Currency or currency unit into Dollars at the Market Exchange Rate on
the date of such determination (or, in the case of a Security denominated in
a currency unit for which there is no Market Exchange Rate, the Dollar
equivalent obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for each such Component Currency on the date of such
determination) of the principal amount (or, in the case of an Original Issue
Discount Security, of the amount determined as provided in (i) above) of such
Security, and (iii) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the pledgee is not
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
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"Paying Agent" means the Trustee or any other Person authorized by the
Company to pay the principal of (and premium, if any) or interest, if any, on
any Securities on behalf of the Company.
"Person" or "person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
estate, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest, if any, on the Securities of that series are payable as specified
in accordance with Section 202 or Section 301, as the case may be.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 405 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any real estate or any manufacturing or
processing plant or warehouse owned or leased by the Company or any
Restricted Subsidiary of the Company which is located within the United
States of America and the gross book value (including related land and
improvements thereon and all machinery and equipment included therein without
deduction of any depreciation reserves) of which on the date as of which the
determination is being made exceeds 2% of Consolidated Net Tangible Assets,
other than (a) any property which in the opinion of the Board of Directors is
not of material importance to the total business conducted by the Company as
an entirety or (b) any portion of a particular property which is found by the
Board of Directors not to be of material importance to the use or operation
of such property.
"Realty Subsidiary" means a Subsidiary of the Company engaged primarily in
the development and sale or financing of real property.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price, in the currency or currency unit in which such Security is
payable, at which it is to be redeemed pursuant to this Indenture.
"Registered Global Note" has the meaning specified in Section 412.
"Registered Security" means any Security registered in the Security
Register (including without limitation any Security in temporary or
definitive global registered form).
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 202 or Section 301, as the case may be,
which date shall be, unless otherwise specified pursuant to Section 202 or
Section 301, as the case may be, the fifteenth day preceding such Interest
Payment Date, whether or not such day shall be a Business Day.
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"Required Currency" has the meaning specified in Section 115.
"Responsible Trust Officer", when used with respect to the Trustee, means
any officer in the Corporate Trust Office and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means a Subsidiary of the Company (a) substantially
all the property of which is located, or substantially all the business of
which is carried on, within the United States of America and (b) which owns a
Principal Property, but does not include a Realty Subsidiary or a Finance
Subsidiary.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities (including Medium-Term Debt
Securities) authenticated and delivered under this Indenture and, in the case
of any Bearer Security, shall include where appropriate any Coupons
appertaining thereto.
"Security Register" has the meaning specified in Section 404.
"Security Registrar" means the Person appointed as the initial Security
Registrar in Section 404 or any Person appointed by the Company as a
successor or replacement Security Registrar.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 406.
"Specified Amount" has the meaning specified in Section 410(i).
"Stated Maturity", when used with respect to any Security (or Coupon, if
any, representing an installment of interest) or any installment of principal
thereof or interest thereon, means the date specified in such Security (or
Coupon) as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any specified corporation means any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by the specified corporation or by one or more of its
Subsidiaries, or both.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean or include each Person who is then a Trustee hereunder, and if at any
time there is more than one such Person, "Trustee" as used with respect to
the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended by
the Trust Indenture Reform Act of 1990, and as in force at the date as of
which this instrument was executed, except as provided in Section 1005.
"United States" means the United States of America (including the states
and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
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"U.S. Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in
either case be designated by the Company pursuant to Section 202 or
Section 301, as the case may be, until a successor U.S. Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depositary" shall mean or include each Person who is then a
U.S. Depositary hereunder, and if at any time there is more than one such
Person, "U.S. Depositary" as used with respect to the Securities of any
series shall mean the U.S. Depositary with respect to the Securities of that
series.
"U.S. Government Obligations" has the meaning specified in Section 505.
"Valuation Date" has the meaning specified in Section 410(e).
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock", as applied to the stock of any corporation, means stock of
any class or classes (however designated) having by the terms thereof
ordinary voting power to elect a majority of the members of the board of
directors (or other governing body) of such corporation other than stock
having such power only by reason of the happening of a contingency.
"Yield to Maturity" of any Security means the yield to maturity on such
Security, calculated at the time of issuance of such Security, or if
applicable, at the most recent redetermination of interest on such Security
in accordance with accepted financial practice.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Unless expressly otherwise specified with respect to any certificate or
opinion provided for in this Indenture, every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than annual certificates provided pursuant to Section 1106)
shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of any series may be embodied
in and evidenced by (i) one or more instruments of substantially similar
tenor signed by such Holders in person or by proxies duly appointed in
writing, (ii) the record of such Holders voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article Fourteen, or (iii) a combination of any such record and
one or more instruments of substantially similar tenor signed by such Holders
in person or by proxies duly appointed in writing. Except as herein otherwise
expressly provided, such action shall become effective when such record
and/or instrument or instruments are delivered to the Trustee and, where it
is hereby expressly required, to the Company. Such record or instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such proxy
shall be sufficient for any purpose of this Indenture and (subject to
Section 701) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
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(c) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed by any trust company,
bank, banker or other depository, wherever situated, showing that at the date
therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may
be proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to bc
satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is
produced, (2) such Bearer Security is produced to the Trustee by some other
Person, (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding.
(d) The fact and date of execution of any such instrument or writing
pursuant to clause (c) above, the authority of the Person executing the same
and the principal amount and serial numbers of Bearer Securities held by the
Person so executing such instrument or writing and the date of holding the
same may also be proved in any other manner which the Trustee deems
sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this clause.
(e) The principal amount and serial numbers of Registered Securities held
by any Person and the date of holding the same shall be proved by the
Security Register.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of a Holder shall bind every future Holder of the same Security
and/or Coupon and the Holder of every Security and/or Coupon issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is
made upon such Security and/or Coupon.
(g) Whenever any Act is to be taken hereunder by the Holders of two or
more series of Securities denominated in different currencies (or currency
units), then, for the purpose of determining the principal amount of
Securities held by such Holders, the aggregate principal amount of the
Securities denominated in a Foreign Currency (or any currency unit) shall be
deemed to be that amount determined by the Company or by an authorized
Exchange Rate Agent and evidenced to the Trustee by an Officers' Certificate
as of the date the taking of such Act by the Holders of the requisite
percentage in principal amount of the Securities is evidenced to the Trustee
to be equal to the Dollar equivalent obtained by converting the specified
Foreign Currency or currency unit into Dollars at the Market Exchange Rate on
such date (or, in the case of a Security denominated in a currency unit for
which there is no Market Exchange Rate, the Dollar equivalent obtained by
adding together the results obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for each
such Component Currency on such date) of the principal amount (or, in the
case of an Original Issue Discount Security, the principal amount thereof
that would be due and payable as of the declaration of acceleration of the
Maturity thereof pursuant to Section 602) of such Security. An Exchange Rate
Agent may be authorized in advance or from time to time by the Company. Any
such determination by the Company or by any such Exchange Rate Agent shall be
conclusive and binding on all Holders, the Company and the Trustee, and
neither the Company nor any such Exchange Rate Agent shall be liable therefor
in the absence of bad faith.
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(h) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or
other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after
the record date.
SECTION 105. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or other Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office and unless otherwise herein expressly provided, any such
document shall be deemed to be sufficiently made, given, furnished or
filed upon its receipt by a Responsible Trust Officer of the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and delivered in person, mailed, first-class postage prepaid, or
sent by overnight courier or, until such time as the Company shall have
notified the Trustee in writing that it shall no longer accept delivery of
notice by telecopy or telex, given by telecopy or by telex (with
answerback received) to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Company, or at its telecopy or telex number from time to time furnished in
writing to the Trustee expressly for purposes of this Indenture,
Attention: Secretary.
SECTION 106. Notice to Holders; Waiver. (a) Where this Indenture provides
for notice to Holders of any event:
(i) if any of the Securities affected by such event are Registered
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if in writing and delivered in person, mailed, first-class
postage prepaid or sent by overnight courier, to each Holder affected by
such event, at his address as it appears in the Security Register, within
the time prescribed for the giving of such notice, and
(ii) if any of the Securities affected by such event are Bearer
Securities, such notice shall be sufficiently given (unless otherwise
herein expressly provided or unless otherwise specified in such
Securities) if (A) published once in an Authorized Newspaper in New York
City and London and, if applicable, in Luxembourg or such other place of
publication as may be required pursuant to the rules and regulations of
any securities exchange on which such Securities are listed, and (B)
delivered in person, mailed, first-class postage prepaid or sent by
overnight courier to such Persons whose names were previously filed with
the Trustee, within the time prescribed for the giving of such notice.
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In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities in the manner specified above, then such notification
as shall be made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In case by reason of the
suspension of publication of any Authorized Newspaper or Authorized
Newspapers or by reason of any other cause it shall be impracticable to
publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient notice to such Holders
for every purpose hereunder.
(b) In any case where notice to a Holder of Registered Securities is given
in any manner specified in paragraph (a) above, such notice shall be
conclusively presumed to have been duly given, whether or not such Holder
receives such notice. In any case where notice to Holders of Registered
Securities is given in any manner specified in paragraph (a) above, neither
the failure to deliver, mail or send such notice, nor any defect in any
notice so mailed or sent, to any particular Holder of a Registered Security
shall affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided in paragraph (a)
above, nor any defect in any notice so published, shall affect the
sufficiency of any notice to Holders of Registered Securities given as
provided herein.
(c) Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with the duties imposed by any of Sections 310
to 317, inclusive, of the Trust Indenture Act through operation of
Section 318(c) thereof, such imposed duties shall control.
SECTION 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 110. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
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SECTION 111. Benefits of Indenture. Nothing in this Indenture or in the
Securities or Coupons, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law. THIS INDENTURE AND THE SECURITIES AND COUPONS
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
SECTION 113. Legal Holidays. Except as otherwise specified as contemplated
by Section 202 or Section 301, as the case may be, in any case where any
Interest Payment Date, Redemption Date, scheduled date of repayment at the
option of the Holder, scheduled date of required repurchase or Stated
Maturity of any Security or Coupon shall not be a Business Day at any Place
of Payment, then (notwithstanding any other provision of this Indenture or of
such Security or Coupon) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
scheduled date of repayment at the option of the Holder or scheduled date of
required repurchase, or at the Stated Maturity, as the case may be, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date, scheduled date of repayment at the option of
the Holder, scheduled date of required repurchase or Stated Maturity, as the
case may be, to the next succeeding Business Day at such Place of Payment if
such payment is made or duly provided for on such Business Day.
SECTION 114. Moneys of Different Currencies To Be Segregated. The Trustee
shall segregate moneys, funds and accounts held by the Trustee hereunder in
one currency (or currency unit) from any moneys, funds or accounts in any
other currencies (or currency units), notwithstanding any provision herein
which would otherwise permit the Trustee to commingle such amounts.
SECTION 115. Payment To Be in Proper Currency. In the case of any Security
denominated in any particular currency or currency unit (the "Required
Currency"), subject to applicable law and except as otherwise provided
herein, therein or in or pursuant to the related Board Resolution, Medium-
Term Debt Securities Certificate or supplemental indenture, the obligation of
the Company to make any payment of principal, premium or interest thereon
shall not be discharged or satisfied by any tender by the Company, or
recovery by the Trustee, in any currency or currency unit other than the
Required Currency, except to the extent that such tender or recovery shall
result in the Trustee's timely holding the full amount of the Required
Currency then due and payable. If any such tender or recovery is made in
other than the Required Currency, the Trustee may take such actions as it
considers appropriate to exchange such other currency or currency unit for
the Required Currency. The costs and risks of any such exchange, including
without limitation the risks of delay and exchange rate fluctuation, shall be
borne by the Company, the Company shall be liable for any shortfall or
delinquency in the full amount of the Required Currency then due and payable,
and in no circumstances shall the Trustee be liable therefor. The Company
hereby waives any defense of payment based upon any such tender or recovery
which is not in the Required Currency, or which, when exchanged for the
Required Currency by the Trustee, is less than the full amount of the
Required Currency then due and payable
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SECTION 116. Language of Notices, etc. Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this
Indenture shall be in the English language, except that any published notice
may be in an official language of the country of publication.
SECTION 117. Changes in Exhibits. At any time and from time to time, the
Company may substitute a new form, or add new forms, of the Exhibits hereto.
Such substitution shall be effective upon receipt by the Trustee of such new
form of Exhibit and a Board Resolution or Officers' Certificate adopting such
new form of Exhibit, and thereafter all references in this Indenture to such
Exhibit shall be deemed to refer to such new form of Exhibit.
ARTICLE TWO
Issuance of Securities
SECTION 201. Creation of Securities in Amount Unlimited. An unlimited
aggregate principal amount of Securities may be issued pursuant to this
Article Two and, in the case of Medium-Term Debt Securities, pursuant to
Article Three. The Securities (including Medium-Term Debt Securities) may be
authenticated and delivered, as authorized by the Board of Directors, in an
unlimited number of series.
SECTION 202. Documents Required for Issuance of Each Series of Securities
Other than Medium-Term Debt Securities. At any time and from time to time,
Securities of each series created pursuant to the provisions of this Article
Two may be executed by the Company and delivered to the Trustee and shall be
authenticated by the Trustee and delivered to, or upon the order of, the
Company upon receipt by the Trustee of the following:
(a) A Board Resolution or Board Resolutions authorizing the issuance of
the Securities of the series, and specifying, to the extent applicable,
the following terms:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered (except for
Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the series
pursuant to Section 403, 404, 405, 1006 or 1207 and except for any
Securities which, pursuant to Section 402, are deemed never to have been
authenticated and delivered hereunder);
(3) the date or dates on which the principal (and premium, if any)
of any of the Securities of the series are payable or the method of
determination thereof;
(4) the rate or rates, or the method of determination thereof, at
which any of the Securities of the series shall bear interest, if any,
the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Registered Securities on any
Interest Payment Date;
(5) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Securities and Coupons, if any,
of the series shall be payable and the office or agency for the
Securities of the series maintained by the Company pursuant to
Section 1102;
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(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Securities of
the series may be redeemed, in whole or in part, at the option of the
Company;
(7) the terms of any sinking fund and the obligation, if any, of
the Company to redeem, repay or purchase Securities of the series
pursuant to any sinking fund or analogous provisions, upon the
occurrence of certain events or at the option of a Holder thereof and
the period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be so
redeemed, repaid or purchased, in whole or in part;
(8) the terms of the obligation of the Company, if any, to permit
the conversion of the Securities of the series into stock or other
securities of the Company or of any other corporation;
(9) the terms, if any, for the attachment to Securities of the
series of warrants, options or other rights to purchase or sell stock
or other securities of the Company;
(10) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and $5,000, if Bearer
Securities, for Securities denominated in Dollars, the denominations in
which the Securities of the series shall be issuable;
(11) if other than the principal amount thereof, the portion of the
principal amount of any of the Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 602;
(12) any non-application of Section 503, and whether and to what
extent any other means of satisfaction and discharge and/or defeasance
shall be applicable to the Securities and Coupons, if any, of a series;
(13) any deletions or modifications of or additions to the Events
of Default set forth in Section 601 or covenants of the Company set
forth in Article Nine or Eleven pertaining to the Securities of the
series (including without limitation whether the provisions of
Section 1104 or Section 1105 shall not be applicable to the Securities
of the series);
(14) the forms of the Securities and Coupons, if any, of the
series;
(15) if other than Dollars, the currency or currencies, or currency
unit or units, in which the Securities of such series will be
denominated and/or in which payment of the principal of (and premium, if
any) and interest, if any, on any of the Securities of the series shall
be payable and the Exchange Rate Agent, if any, for such series;
(16) if the principal of (and premium, if any) or interest, if any,
on any of the Securities of the series are to be payable at the election
of the Company or a Holder thereof, or under some or all other
circumstances, in a currency or currencies, or currency unit or units,
other than that in which the Securities are denominated, the period or
periods within which, and the terms and conditions upon which, such
election may be made, or the other circumstances under which any of the
Securities are to be so payable, including without limitation the
application of Section 410(b) and any deletions to, modifications of or
additions to the provisions thereof, and any provision requiring the
Holder to bear currency exchange costs by deduction from such payments;
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(17) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Securities of the series may be
determined with reference to an index based on (i) a currency or
currencies or currency unit or units other than that in which such
Securities are stated to be payable or (ii) any method, not inconsistent
with the provisions of this Indenture, specified in or pursuant to such
Board Resolution, then in each case (i) and (ii) the manner in which
such amounts shall be determined;
(18) whether the Securities of the series are to be issued as
Registered Securities or Bearer Securities (with or without Coupons), or
any combination thereof, whether Bearer Securities may be exchanged for
Registered Securities of the series and the circumstances under which
and the place or places where any such exchanges, if permitted, may be
made; and whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in definitive global form with or without
Coupons and, if so, whether beneficial owners of interests in any such
definitive global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which and the place or places where any such
exchanges may occur, if other than in the manner provided in Section 404
or Section 412;
(19) if the Securities and Coupons, if any, of the series are to be
issued upon the exercise of warrants, the time, manner and place for
such Securities and Coupons, if any, to be authenticated and delivered;
(20) whether and under what circumstances and with what procedures
and documentation the Company will pay additional amounts on any of the
Securities and Coupons, if any, of the series to any Holder who is not a
U.S. Person (including a definition of such term), in respect of any
tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Securities
rather than pay additional amounts (and the terms of any such option);
(21) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the Coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 403;
(22) whether the Securities of the series shall be issued in whole
or in part in the form of one or more global Securities and, in such
case, the U.S. Depositary or any Common Depositary for, and any other
provisions relating to, such global Security or global Securities; and
if the Securities of the series are issuable only as Registered
Securities, (A) the manner in which and the circumstances under which
Registered Global Notes representing Securities of the series may be
exchanged for Registered Securities in definitive form, if other than,
or in addition to, the manner and circumstances specified in
Section 412, and (B) any other provisions that may be necessary or
desirable to effect compliance with the rules, regulations, practices
and policies of the U.S. Depositary from time to time in effect, which
provisions may or may not be consistent with Section 412; and
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(23) any other terms of any of the Securities of the series (which
terms shall not be inconsistent with the provisions of this Indenture).
If any of the terms of the series are established by action taken
pursuant to a Board Resolution or Board Resolutions, an Officers'
Certificate certifying as to such action also shall be delivered to the
Trustee.
(b) In case the Securities of the series to be authenticated and
delivered are to be created pursuant to one or more supplemental
indentures, such supplemental indenture or indentures, accompanied by a
Board Resolution or Board Resolutions authorizing such supplemental
indenture or indentures and designating the new series to be created and
prescribing pursuant to paragraph (a) above, consistent with the
applicable provisions of this Indenture, the terms and provisions relating
to the Securities of the series.
(c) Either (i) a certificate or other official document evidencing the
due authorization, approval or consent of any governmental body or bodies,
at the time having jurisdiction in the premises, together with an Opinion
of Counsel that the Trustee is entitled to rely thereon and that the
authorization, approval or consent of no other governmental body is
required, or (ii) an Opinion of Counsel that no authorization, approval or
consent of any governmental body is required.
(d) An Opinion of Counsel that all instruments furnished the Trustee
conform to the requirements of this Indenture and constitute sufficient
authority hereunder for the Trustee to authenticate and deliver the
Securities and to deliver the Coupons, if any, of the series; that all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of the Securities and delivery of the Coupons,
if any, of the series have been complied with and the Company is duly
entitled to the authentication and delivery of the Securities and Coupons,
if any, of the series in accordance with the provisions of this Indenture;
that all laws and requirements with respect to the form and execution by
the Company of the supplemental indenture, if any, and the execution and
delivery by the Company of the Securities and Coupons, if any, of the
series have been complied with; that the Company has corporate power to
execute and deliver the supplemental indenture, if any, and to issue the
Securities and Coupons, if any, of the series and has duly taken all
necessary corporate action for those purposes; and that the supplemental
indenture, if any, as executed and delivered and the Securities and
Coupons, if any, of the series, when issued, will be the legal, valid and
binding obligations of the Company enforceable against the Company in
accordance with their terms (subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws affecting
creditors' rights generally from time to time in effect, the
enforceability of the Company's obligations also being subject to general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law)); that the Securities and
Coupons, if any, of the series, when issued, will be entitled to the
benefits of this Indenture, equally and ratably with all other Securities
and Coupons, if any, of such series theretofore issued and then
outstanding hereunder; and that the amount of Securities then outstanding
under this Indenture, including the Securities of the series, will not
exceed the amount at the time permitted by law or this Indenture.
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(e) An Officers' Certificate stating that the Company is not in default
under this Indenture and that the issuance of the Securities and Coupons,
if any, of the series will not result in any breach of any of the terms,
conditions or provisions of, or constitute a default under, the Company's
certificate of incorporation or by-laws or any indenture, mortgage, deed
of trust or other agreement or instrument to which the Company is a party
or by which it is bound, or any order of any court or administrative
agency entered in any proceeding to which the Company is a party or by
which it may be bound or to which it may be subject; and that all
conditions precedent provided in this Indenture relating to the
authentication and delivery of the Securities and Coupons, if any, of the
series have been complied with.
(f) Such other documents as the Trustee may reasonably require.
ARTICLE THREE
Issuance of Medium-Term Debt Securities
SECTION 301. Documents Required for Issuance of Each Series of Medium-Term
Debt Securities. At any time, and from time to time, Securities (sometimes
referred to herein as "Medium-Term Debt Securities") of each series created
pursuant to the provisions of this Article Three may be executed by the
Company and delivered to the Trustee and shall be authenticated by the
Trustee and delivered to, or upon the order of, the Company upon receipt by
the Trustee of the following:
(a) A Board Resolution or Board Resolutions authorizing the issuance of
Medium-Term Debt Securities up to a specified aggregate principal amount
or having a maximum aggregate offering price, in such series and subject
to such terms as shall be established by officers of the Company
authorized by such resolutions to establish such series and terms.
(b) A Medium-Term Debt Securities Certificate requesting the Trustee to
authenticate and deliver Medium-Term Debt Securities of a series as
contemplated by Section 402, and specifying, to the extent applicable, the
following terms with respect to the Medium-Term Debt Securities of the
particular series, or specifying, to the extent applicable, the method of
determining any such terms with respect to any such Medium-Term Debt
Securities, authorized pursuant to the Board Resolution or Board
Resolutions referred to in paragraph (a) above:
(1) the title of the Medium-Term Debt Securities of the series
(which shall distinguish the Medium-Term Debt Securities of the series
from all other Securities);
(2) the dates of the Medium-Term Debt Securities of the series;
(3) any limit upon the aggregate principal amount of the Medium-
Term Debt Securities of the series which may be authenticated and
delivered (except for Medium-Term Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Medium-Term Debt Securities of the series pursuant to
Section 403, 404, 405, 1006 or 1207 and except for any Medium-Term Debt
Securities which, pursuant to Section 402, are deemed never to have been
authenticated and delivered hereunder);
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(4) the date or dates on which the principal (and premium, if any)
of any of the Medium-Term Debt Securities of the series are payable;
(5) the rate or rates at which any of the Medium-Term Debt
Securities of the series shall bear interest, if any, the date or dates
from which such interest shall accrue, the Interest Payment Dates on
which such interest shall be payable and the Regular Record Date for the
interest payable on any Medium-Term Debt Securities of the series that
are Registered Securities on any Interest Payment Date;
(6) the place or places where the principal of (and premium, if
any) and interest, if any, on any of the Medium-Term Debt Securities and
Coupons, if any, of the series shall be payable and the office or agency
for the Medium-Term Debt Securities of the series maintained by the
Company pursuant to Section 1102;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any of the Medium-Term
Debt Securities of the series may be redeemed, in whole or in part, at
the option of the Company;
(8) the terms of any sinking fund and the obligation, if any, of
the Company to redeem, repay or purchase Medium-Term Debt Securities of
the series pursuant to any sinking fund or analogous provisions, upon
the occurrence of certain events or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and
the terms and conditions upon which Medium-Term Debt Securities of the
series shall be so redeemed, repaid or purchased, in whole or in part;
(9) the terms of the obligation of the Company, if any, to permit
the conversion of the Medium-Term Debt Securities of the series into
stock or other securities of the Company or of any other corporation;
(10) the terms, if any, for the attachment to Medium-Term Debt
Securities of the series of warrants, options or other rights to
purchase or sell stock or other securities of the Company;
(11) if other than denominations of $1,000 and any integral
multiple thereof, if Registered Securities, and $5,000 if Bearer
Securities, for Medium-Term Debt Securities denominated in Dollars, the
denominations in which the Medium-Term Debt Securities of the series
shall be issuable;
(12) if other than the principal amount thereof, the portion of the
principal amount of any of the Medium-Term Debt Securities of the series
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 602;
(13) any non-application of Section 503, and whether and to what
extent any other means of satisfaction and discharge and/or defeasance
shall be applicable to the Medium-Term Debt Securities and Coupons, if
any, of the series;
(14) any deletions or modifications of or additions to the Events
of Default set forth in Section 601 or covenants of the Company set
forth in Article Nine or Eleven pertaining to the Medium-Term Debt
Securities of the series (including without limitation whether the
provisions of Section 1104 or Section 1105 shall not be applicable to
the Medium-Term Debt Securities of the series);
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(15) if other than Dollars, the currency or currencies, or currency
unit or units, in which any of the Medium-Term Debt Securities of the
series will be denominated and/or in which payment of the principal of
(and premium, if any) and interest, if any, on any of the Medium-Term
Debt Securities of the series shall be payable and the Exchange Rate
Agent, if any, for such series;
(16) if the principal of (and premium, if any) or interest, if any,
on any of the Medium-Term Debt Securities of the series are to be
payable at the election of the Company or Holder thereof, or under some
or all other circumstances, in a currency or currencies, or currency
unit or units, other than that in which the Medium-Term Debt Securities
are stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made, or the other
circumstances under which any of the Medium-Term Debt Securities are to
be so payable, including without limitation the application of
Section 410(b) and any deletions to, modification of or additions to the
provisions thereof, and any provision requiring the Holder to bear
currency exchange costs by deduction from such payments;
(17) if the amount of payments of principal of (and premium, if
any) or interest, if any, on any of the Medium-Term Debt Securities of
the series may be determined with reference to an index based on (i) a
currency or currencies or currency unit or units other than that in
which such Medium-Term Debt Securities are stated to be payable or (ii)
any method, not inconsistent with the provisions of this Indenture,
specified in or pursuant to such Board Resolution, then in each case (i)
and (ii) the manner in which such amounts shall be determined;
(18) whether the Medium-Term Debt Securities of the series are to
be issued as Registered Securities or Bearer Securities (with or without
Coupons), or any combination thereof, whether Bearer Securities may be
exchanged for Registered Securities of the series and the circumstances
under which and the place or places where any such exchanges, if
permitted, may be made; and whether any of the Medium-Term Debt
Securities of the series are to be issuable initially in temporary
global form and whether any of the Medium-Term Debt Securities of the
series are to be issuable in definitive global form with or without
Coupons and, if so, whether beneficial owners of interests in any such
definitive global Medium-Term Debt Security may exchange such interests
for any of the Medium-Term Debt Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which and the place or places where any such exchange may occur,
if other than in the manner provided in Section 404 or Section 412;
(19) if any of the Medium-Term Debt Securities and Coupons, if any,
of the series are to be issued upon the exercise of warrants, the time,
manner and place for such Medium-Term Debt Securities and Coupons, if
any, of the series to be authenticated and delivered;
(20) whether and under what circumstances and with what procedures
and documentation the Company will pay additional amounts on any of the
Medium-Term Debt Securities of the series to any Holder who is not a
U.S. Person (including a definition of such term), in respect of any
tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Medium-Term Debt
Securities rather than pay additional amounts (and the terms of any such
option);
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(21) the Person to whom any interest on any Medium-Term Debt
Security of the series shall be payable, if other than the Person in
whose name that Medium-Term Debt Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the Coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Medium-Term Debt Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 403;
(22) if other than the forms set forth in Exhibit A hereto, the
forms of the Medium-Term Debt Securities and Coupons, if any, of the
series;
(23) whether the Medium-Term Debt Securities of the series shall be
issued in whole or in part in the form of one or more global Securities
and, in such case, the U.S. Depositary or any Common Depositary for, and
any other provisions relating to, such global Security or global
Securities; and if the Medium-Term Debt Securities of the series are
issuable only as Registered Securities, (A) the manner in which and the
circumstances under which Registered Global Notes representing
Medium-Term Debt Securities of the series may be exchanged for
Registered Securities in definitive form, if other than, or in addition
to, the manner and circumstances specified in Section 412, and (B) any
other provisions that may be necessary or desirable to effect compliance
with the rules, regulations, practices and policies of the U.S.
Depositary from time to time in effect, which provisions may or may not
be consistent with Section 412; and
(24) any other terms of any of the Medium-Term Debt Securities of
the series (which terms shall not be inconsistent with the provisions of
this Indenture).
Unless the Company shall be required to deliver an Officers' Certificate
pursuant to paragraph (d) below in connection with the authentication of
the Medium-Term Debt Securities of the series, the delivery of such Medium-
Term Debt Securities Certificate to the Trustee shall be deemed to be a
certification by the Company that all matters certified in the most recent
Officers' Certificate delivered to the Trustee pursuant to paragraph (d)
below continue to be true and correct, as if such Officers' Certificate
related to the Medium-Term Debt Securities covered by such Medium-Term
Debt Securities Certificate, on and as of the date of such Medium-Term
Debt Securities Certificate. The delivery of such Medium-Term Debt
Securities Certificate also shall be deemed to be a certification that the
Board Resolution or Board Resolutions referred to in paragraph (a) above
are in full force and effect on and as of the date of such Medium-Term
Debt Securities Certificate and that the terms and form or forms of the
Medium-Term Debt Securities and Coupons, if any, of the series have been
established by an officer or officers of the Company authorized by such
Board Resolution or Board Resolutions in accordance with the provisions
thereof and hereof.
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(c) If (i) the Company shall not have previously delivered to the
Trustee an Opinion of Counsel to the effect set forth in this paragraph
(c) with respect to the Medium-Term Debt Securities authorized pursuant to
the Board Resolution or Board Resolutions referred to in paragraph (a)
above or (ii) if the Medium-Term Debt Securities Certificate referred to
in paragraph (b) above specifies a means of satisfaction and discharge
other than the application of Section 503 with respect to the series of
Medium-Term Debt Securities to which such Medium-Term Debt Securities
Certificate relates, an Opinion of Counsel that the Medium-Term Debt
Securities have been duly authorized by resolutions of the Board of
Directors of the Company, subject to the establishment of certain terms of
the Medium-Term Debt Securities and Coupons, if any, of the series by
officers of the Company authorized by such resolutions to establish such
terms, that when the terms of the Medium-Term Debt Securities and Coupons,
if any, of the series have been established as provided in such
resolutions, in this Indenture and in the applicable Medium-Term Debt
Securities Certificate and the Medium-Term Debt Securities and Coupons, if
any, of the series have been executed, authenticated and delivered in
accordance with the provisions of this Indenture, the Medium-Term Debt
Securities and Coupons, if any, of the series, assuming they do not
violate any applicable law then binding on the Company, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of this Indenture, equally and ratably with all other Securities
and Coupons, if any, of such series theretofore issued and then
outstanding hereunder, and that the amount of Securities then outstanding
under this Indenture, including the Medium-Term Debt Securities of the
series, will not exceed the amount at the time permitted by law or this
Indenture.
(d) If the Company shall not have delivered an Officers' Certificate
pursuant to the provisions of this paragraph (d) to the Trustee during the
immediately preceding 12-month period, an Officers' Certificate stating
that the Company is not in default under this Indenture, that the issuance
of the Medium-Term Debt Securities and Coupons, if any, of the series will
not result in any breach of any of the terms, conditions or provisions of,
or constitute a default under, the Company's certificate of incorporation
or By-laws or any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it is bound, or any
order of any court or administrative agency entered in any proceeding to
which the Company is a party or by which it may be bound or to which it
may be subject, that all laws and requirements with respect to the
execution and delivery by the Company of the Medium-Term Debt Securities
and Coupons, if any, of the series have been complied with and that all
conditions precedent provided in this Indenture relating to the
authentication and delivery of the Medium-Term Debt Securities and
Coupons, if any, of the series have been complied with.
(e) Such other documents as the Trustee shall reasonably request.
SECTION 302. Form of Medium-Term Debt Securities. The Medium-Term Debt
Securities and Coupons, if any, of each series shall be in such forms as
shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Medium-Term Debt Securities of any series, the
Medium-Term Debt Securities and Coupons, if any, of such series shall be
substantially in the applicable form set forth in Exhibit A hereto, except
with such additions, changes and deletions thereto as may be required to
reflect the different provisions thereof as shall be specified as provided in
Section 301.
ARTICLE FOUR
The Securities
SECTION 401. Form and Denomination. All Securities of any one series and
the Coupons appertaining to any Bearer Securities of such series shall be
substantially identical except, in the case of Registered Securities, as to
denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to in Section 202 or Section 301, as the case may
be, and (subject to Section 402) set forth in the Officers' Certificate or
Medium-Term Debt Securities Certificate referred to in Section 202 or
Section 301, as the case may be, or in any indenture supplemental hereto.
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The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 202 or Section 301, as the case
may be. In the absence of any such provisions with respect to the Securities
of any series, the Securities of such series denominated in Dollars shall be
issuable in denominations of $l,000 and any integral multiple thereof, if
registered, and in denominations of $5,000 if bearer. Securities of each
series shall be numbered, lettered or otherwise distinguished in such manner
or in accordance with such plan as the officers of the Company executing the
same may determine with the approval of the Trustee. Each Security shall bear
the appropriate legends, if any, as required by U.S. Federal tax law and
regulations.
SECTION 402. Execution, Delivery, Dating and Authentication. The Securities
shall be executed on behalf of the Company by the manual or facsimile
signature of its Chairman, its President, any of its Vice Presidents, its
Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary.
Any Coupons shall be executed on behalf of the Company by the manual or
facsimile signature of any such officer of the Company. In case any of the
above referenced officers of the Company who shall have signed any of the
Securities or Coupons shall cease to be such officer before the Securities so
signed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Securities nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Securities
and/or Coupons had not ceased to be such officer; and any Securities or
Coupons may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Security or Coupon, shall be such
officers of the Company, although at the date of the execution of this
Indenture any such person was not such officer.
At any time and from time to time, the Company may deliver Securities of
any series, together with any Coupons appertaining thereto, executed by the
Company to the Trustee for authentication, together (except in the case of
any Medium-Term Debt Securities) with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the
Company Order (or, in the case of Medium-Term Debt Securities of any series,
upon receipt of a Medium-Term Debt Securities Certificate and in accordance
with the terms thereof) shall authenticate and make available for delivery
such Securities; provided, however, that, unless otherwise specified in the
Board Resolution (or, in the case of any Bearer Securities that are Medium-
Term Debt Securities in the Medium-Term Debt Securities Certificate) with
respect to an Bearer Securities, in connection with its original issuance, no
Bearer Security (including any temporary Bearer Security issued pursuant to
Section 403 which is not in global form) shall be mailed or otherwise
delivered to any location in the United States; and provided further that,
unless otherwise specified in the Board Resolution (or, in the case of any
Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term
Debt Securities Certificate) with respect to such Bearer Securities, such
Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security (including any
temporary Bearer Security issued pursuant to Section 403 which is not in
global form) shall have furnished to the Company or any agent, underwriter or
selling group member a certificate substantially in the form set forth in
Exhibit B.2 to this Indenture, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date
on which any temporary Security first becomes exchangeable for such Bearer
Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a definitive global Bearer
Security, then, for purposes of this Section and Section 403, the notation of
a beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary global Security shall be deemed
to be delivery in connection with its original issuance of such beneficial
owner's interest in such definitive global Bearer Security. Except as
permitted by Section 405, the Trustee shall not authenticate and make
available for delivery any Bearer Security unless all appurtenant Coupons for
interest then matured have been detached and canceled.
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The Trustee shall not be required to authenticate Securities of any series
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee, or if the Trustee determines that such action may not lawfully be
taken.
Unless otherwise specified pursuant to Section 301(b)(2), each Registered
Security shall be dated the date of its authentication, and each Bearer
Security and any Bearer Security in global form shall be dated as of the date
of original issuance of the first Security of such series to be issued.
No Security or Coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided
for below executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancelation as provided in Section 408 together with a written statement
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
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The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated herein issued under
the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By
------------------------------
Authorized Signatory
SECTION 403. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order
(or, in the case of Medium-Term Debt Securities, receipt of the Medium-Term
Debt Securities Certificate with respect to such Medium-Term Debt Securities)
the Trustee shall authenticate and make available for delivery, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more Coupons or
without Coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as evidenced conclusively by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company maintained pursuant to Section
1102 in a Place of Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon surrender for
cancelation of any one or more temporary Securities of any series
(accompanied by any unmatured Coupons) the Company shall execute and the
Trustee shall authenticate and make available for delivery in exchange
therefor a like aggregate principal amount of definitive Securities of the
same series and of like tenor and of authorized denominations; provided,
however, that a definitive Bearer Security shall be delivered in exchange for
a temporary Bearer Security only in compliance with the conditions set forth
in Section 402.
If temporary Bearer Securities of any series are issued in global form,
such temporary global Bearer Securities shall, unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, be delivered
to the London office of a depository or common depository (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of interests in such Securities
(or to such other accounts as they may direct).
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Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (which shall (subject to any applicable laws and regulations)
be at least 40 days after the issue date of such temporary global Security
(the "Exchange Date"), the Company shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of
such temporary global Security, executed by the Company. On or after the
Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive
Securities without charge and the Trustee shall authenticate and make
available for delivery, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The definitive Securities to
be delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, definitive global form or any combination
thereof, as specified as contemplated by Section 202 or Section 301, as the
case may be, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that, unless otherwise
specified as contemplated by Section 202 or Section 301, as the case may be,
upon such presentation by the Common Depositary, such temporary global
Security shall be accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euro-clear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL S.A. as to
the portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B.1 to this Indenture;
provided further that definitive Bearer Securities (including a definitive
global Bearer Security) shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the requirements of Section
402.
Unless otherwise specified as contemplated by Section 202 or Section 301,
as the case may be, the interest of a beneficial owner of Securities of a
series in a temporary global Bearer Security shall be exchanged for
definitive Bearer Securities of the same series and of like tenor following
the Exchange Date when the beneficial owner instructs Euro-clear or CEDEL
S.A., as the case may be, to request such exchange on his behalf and delivers
to Euro-clear or CEDEL S.A., as the case may be, a certificate substantially
in the form set forth in Exhibit B.2 to this Indenture, dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euro-clear, CEDEL S.A., the Trustee, any
Authenticating Agent appointed for such series of Securities and any Paying
Agent appointed for such series of Securities. Unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, any such
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL S.A. The
definitive Bearer Securities to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
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Until exchanged in full as provided above, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 202 or Section 301, as the case may be,
interest payable on a temporary global Bearer Security on an Interest Payment
Date for Securities of such series occurring prior to the applicable Exchange
Date shall be payable to Euro-clear and CEDEL S.A. on such Interest Payment
Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee of a
certificate or certificates substantially in the form set forth in Exhibit
B.1 to this Indenture, for credit without further interest on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security (or to such other
accounts as they may direct) on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate
substantially in the form set forth in Exhibit B.2 to this Indenture. Any
interest so received by Euro-clear and CEDEL S.A. and not paid as herein
provided shall be returned to the Trustee immediately prior to the expiration
of two years after such Interest Payment Date in order to be repaid to the
Company in accordance with Section 1103.
SECTION 404. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at an office or agency to be maintained by the
Company in accordance with Section 1102 a register (being the combined
register of the Security Registrar and all additional transfer agents
designated pursuant to Section 1102 for the purpose of registration of
transfer of Securities and sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfers of Registered Securities. State
Street Bank and Trust Company is hereby appointed the initial Security
Registrar. At all reasonable times each register maintained by the Security
Registrar and any additional transfer agents shall be open for inspection by
the Trustee.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company maintained pursuant to
Section 1102 for such purpose in a Place of Payment for such series, the
Company shall execute, and the Trustee shall authenticate and make available
for delivery, in the name of the designated transferee or transferees, one or
more new Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Registered Securities to be exchanged at any such
office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and make
available for delivery, the Securities which the Holder making the exchange
is entitled to receive. Unless otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, Bearer Securities may not be
issued in exchange for Registered Securities.
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At the option of the Holder, to the extent permitted by law, and unless
otherwise specified as contemplated by Section 202 or Section 301, as the
case may be, Bearer Securities of any series may be exchanged for Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Bearer Securities
to be exchanged at any such office or agency, with all unmatured Coupons and
all matured Coupons in default appertaining thereto. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the
Company in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by
the Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in
Section 1102, interest represented by Coupons shall be payable only upon
presentation and surrender of those Coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after
the close of business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date or proposed date for payment,
as the case may be (or, if such Coupon is surrendered with such Bearer
Security, such Coupon shall be returned to the Person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and make available for delivery,
the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, any
definitive global Bearer Security shall be exchangeable only as provided in
this paragraph. If the beneficial owners of interests in a definitive global
Bearer Security are entitled to exchange such interests for Securities of
such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 202 or Section 301,
as the case may be, then without unnecessary delay but in any event not later
than the earliest date on which such interests may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in an aggregate
principal amount equal to the principal amount of such definitive global
Bearer Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such definitive global Bearer
Security shall be surrendered by the Common Depositary or such other
depositary as shall be specified in the Company Order or Medium-Term Debt
Securities Certificate, as the case may be, with respect thereto to the
Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge and
the Trustee shall authenticate and make available for delivery, in exchange
for each portion of such definitive global Bearer Security, an equal
aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such definitive
global Bearer Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 202 or Section 301, as
the case may be, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 Business Days before
any selection of Securities of that series to be redeemed and ending on the
relevant Redemption Date; provided further that no Bearer Security delivered
in exchange for a portion of a definitive global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a definitive global Bearer
Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
definitive global Bearer Security is payable in accordance with the
provisions of this Indenture.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee
or any transfer agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed, by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 403, 1006 or 1207 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 Business Days before any selection of Securities of that series
to be redeemed and ending at the close of business on (A) if Securities of
the series are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the
relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the day of
mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption,
in whole or in part, except the unredeemed portion of any Security being
redeemed in part, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and of like tenor; provided that such
Registered Security shall be simultaneously surrendered for redemption.
SECTION 405. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or Security with a mutilated Coupon appertaining to it is
surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and make available for delivery in exchange therefor a new
Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding with Coupons corresponding
to the Coupons, if any, appertaining to the surrendered Security, provided
that if such new Security is a Bearer Security, such Security shall be
delivered only outside the United States.
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If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or
Coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen Coupon appertains (upon surrender to the Trustee of
such Security with all appurtenant Coupons not destroyed, lost or stolen), a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with Coupons
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or Coupon
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security or Coupon, pay such
Security or Coupon; provided, however, that principal of (and premium, if
any) and any interest on Bearer Securities shall, except as otherwise
provided in Section 1102, be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, any interest on Bearer
Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security or Coupon under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security or Coupon of any series issued pursuant to this Section
in lieu of any mutilated, destroyed, lost or stolen Security or Coupon shall
constitute an original additional contractual obligation of the Company,
whether or not the mutilated, destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities
or Coupons of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated. destroyed, lost or stolen Securities or Coupons.
SECTION 406. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 202 or Section 301, as the case
may be, with respect to any series of Securities, interest on any Registered
Security 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 that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest. At the option of
the Company, interest on the Registered Securities of any series that bears
interest may be paid by mailing a check to the address of any Holder as such
address shall appear in the Security Register.
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Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 404, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 407. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such Registered
Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Sections 404, 406 and 411 and unless otherwise
specified as contemplated by Section 202 or Section 301, as the case may be)
interest on such Security and for all other purposes whatsoever, whether or
not such Security is overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
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Title to any Bearer Security and any Coupons shall pass by delivery. The
Company, the Trustee and any agent of the Company or the Trustee may treat
the Holder of any Bearer Security and the Holder of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving
payment thereof or on account thereof (unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be) and for all
other purposes whatsoever, whether or not such Security or Coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any temporary or
permanent global Security, nothing herein shall prevent the Company, the
Trustee, or any agent of the Company or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by a Common
Depositary or a U.S. Depositary, as the case may be, or impair, as between a
Common Depositary or a U.S. Depositary and holders of beneficial interests in
any temporary or permanent global Security, as the case may be, the operation
of customary practices governing the exercise of the rights of the Common
Depositary or the U.S. Depositary as Holder of such temporary or permanent
global Security.
SECTION 408. Cancelation. All Securities and Coupons surrendered for
payment, redemption, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee. All Securities and Coupons so
delivered shall be promptly canceled by the Trustee. All Bearer Securities
and unmatured Coupons held by the Trustee pending such cancelation shall be
deemed to be delivered for cancelation for all purposes of this Indenture and
the Securities. The Company may at any time deliver to the Trustee for
cancelation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to the Trustee (or to any other Person for delivery to the Trustee) for
cancelation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered to the
Trustee shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities and Coupons held by the Trustee shall be disposed of
in a manner selected by the Trustee unless otherwise directed by a Company
Order; provided, however, that the Trustee may, but shall not be required to,
destroy such canceled Securities and Coupons.
SECTION 409. Computation of Interest. Except as otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, for
Securities of any series, interest on the Securities of each series shall bc
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 410. Currency and Manner of Payment in Respect of Securities. The
provisions of this Section shall apply to the Securities of any series unless
otherwise provided as contemplated by Section 202 or Section 301, as the case
may be.
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(a) The following payment provisions shall apply to any Registered
Security of any series denominated in a Foreign Currency or any currency
unit, including without limitation ECU, except as provided in paragraph
(b) below:
(1) Except as provided in subparagraph (a)(2) or in
paragraph (e) below, payment of principal of and premium, if any, on
such Registered Security will be made at the Place of Payment by
delivery of a check in the currency or currency unit in which the
Security is denominated on the payment date against surrender of such
Registered Security, and any interest on any Registered Security will
be paid at the Place of Payment by mailing a check in the currency or
currency unit in which such interest is payable (which shall be the
same as that in which the Security is denominated unless otherwise
provided) to the Person entitled thereto at the address of such
Person appearing on the Security Register.
(2) Payment of the principal of, premium, if any, and
interest, if any, on such Security may also, subject to applicable
laws and regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) With respect to any Registered Security of any series denominated in
any currency unit, including without limitation ECU, if the following
provisions (or any substitute therefor, or addition thereto, not
inconsistent with this Indenture) are established pursuant to Section 202
or Section 301, as the case may be, and if the Company has not, before the
delivery of the election referred to in clause (1) below, deposited funds
or securities in compliance with Section 501 or clause (a)(i) or (if
specified pursuant to Section 202 or Section 301, as the case may be)
clause (a)(ii) of Section 503, the following payment provisions shall
apply to any payment to be made prior to the giving of any notice to
Holders of any election to redeem pursuant to Section 1204, except as
otherwise provided in paragraphs (e) and (f) below:
(1) A Holder of Securities of a series shall have the option to
elect to receive payments of principal of, premium, if any, and
interest, if any, on such Securities in a currency or currency unit
(including Dollars), other than that in which the Security is
denominated, such election, as designated in the certificates for such
Securities (or as provided by Section 202 or Section 301, as the case
may be, or a supplemental indenture hereto with respect to
uncertificated securities), shall be made by delivering to the Paying
Agent a written election, to be in form and substance satisfactory to
the Paying Agent, not later than the close of business in New York, New
York, on the day 15 days prior to the applicable payment date. Such
election will remain in effect for such Holder until changed by the
Holder by written notice to the Paying Agent (but any such written
notice must be received by the Paying Agent not later than the close of
business on the day 15 days prior to the next payment date to be
effective for the payment to be made on such payment date and no such
change may be made with respect to payments to be made on any Security
of such series with respect to which notice of redemption has been given
by the Company pursuant to Article Twelve). Any Holder of any such
Security who shall not have delivered any such election to the Paying
Agent in accordance with this paragraph (b) will be paid the amount due
on the applicable payment date in the relevant currency unit as provided
in paragraph (a) of this Section. Payment of principal of and premium,
if any, shall be made on the payment date therefor against surrender of
such Security. Payment of principal, premium, if any, and interest, if
any, shall be made at the Place of Payment by mailing at such location a
check, in the applicable currency or currency unit, to the Holder
entitled thereto at the address of such Holder appearing on the Security
Register.
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(2) Payment of the principal of, premium, if any, and interest, if
any, on such Security may also, subject to applicable laws and
regulations, be made at such other place or places as may be designated
by the Company by any appropriate method.
(c) Payment of the principal of and premium, if any, and interest, if
any, on any Bearer Security will be made, except as provided in
Section 403 with respect to temporary global Securities, unless otherwise
specified pursuant to Section 202 or Section 301, as the case may be,
and/or Section 1001(8), at such place or places outside the United States
as may be designated by the Company pursuant to any applicable laws or
regulations by any appropriate method in the currency or currencies or
currency unit or units in which the Security is payable (except as
provided in paragraph (e) below) on the payment date therefor against
surrender of the Bearer Security, in the case of payment of principal and
premium, if any, or the relevant Coupon, in the case of payment of
interest, if any, to a Paying Agent designated for such series pursuant to
Section 1102.
(d) Not later than 10 Business Days (with respect to any Place of
Payment) prior to each payment date, the Paying Agent shall deliver to the
Company a copy of its record of the respective aggregate amounts of
principal of, premium, if any, and interest, if any, on the Securities to
be made on such payment date, in the currency or currency unit in which
each of the Securities is payable, specifying the amounts so payable in
respect of Registered Securities and Bearer Securities and in respect of
the Registered Securities as to which the Holders of Securities
denominated in any currency unit shall have elected to be paid in another
currency or currency unit as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant
to Section 202 or Section 301, as the case may be, and if at least one
Holder has made such election, then, not later than the fifth Business Day
(with respect to any Place of Payment) prior to the applicable payment
date the Company will deliver to the Trustee an Exchange Rate Officers'
Certificate in respect of the Dollar or Foreign Currency or currency unit
payments to be made on such payment date. The Dollar or Foreign Currency
or currency unit amount receivable by Holders of Registered Securities
denominated in a currency unit who have elected payment in another
currency or currency unit as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Official Currency
Unit Exchange Rate set forth in the applicable Exchange Rate Officers'
Certificate.
(e) If a Foreign Currency in which any Security is denominated or
payable ceases to be recognized both by the government of the country
which issued such currency and for the settlement of transactions by
public institutions of or within the international banking community, or
if ECU ceases to be used within the European Monetary System, or if any
other currency unit in which a Security is denominated or payable ceases
to be used for the purposes for which it was established, in each case as
determined in good faith by the Company, then with respect to each date
for the payment of principal of, premium, if any, and interest, if any, on
the applicable Security denominated or payable in such Foreign Currency,
ECU or such other currency unit occurring after the last date on which
such Foreign Currency, ECU or such other currency unit was so used (the
"Conversion Date"), the Dollar shall become the currency of payment for
use on each such payment date (but ECU or the Foreign Currency or the
currency unit previously the currency of payment shall, at the Company's
election, resume being the currency of payment on the first such payment
date preceded by 15 Business Days during which the circumstances which
gave rise to the Dollar becoming such currency no longer prevail, in each
case as determined in good faith by the Company). The Dollar amount to be
paid by the Company to the Trustee and by the Trustee or any Paying Agent
to the Holder of such Security with respect to such payment date shall be
the Dollar Equivalent of the Foreign Currency or, in the case of a
currency unit, the Dollar Equivalent of the Currency Unit, as determined
by the Exchange Rate Agent (which shall be delivered in writing to the
Trustee not later than the fifth Business Day prior to the applicable
payment date) as of the Conversion Date or, if later, the date most
recently preceding the payment date in question on which such
determination is possible of performance, but not more than 15 days before
such payment date (such Conversion Date or date preceding a payment date
as aforesaid being called the "Valuation Date") in the manner provided in
paragraph (g) or (h) below.
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(f) If the Holder of a Registered Security denominated in a currency
unit elects payment in a specified Foreign Currency or currency unit as
provided for by paragraph (b) and such Foreign Currency ceases to be used
both by the government of the country which issued such currency and for
the settlement of transactions by public institutions of or within the
international banking community, or if ECU ceases to be used within the
European Monetary System, or if another currency unit ceases to be used
for the purposes for which it is established, in each case as determined
in good faith by the Company, such Holder shall (subject to paragraph (e)
above) receive payment in the currency unit in which the Security is
denominated. Each payment covered by an election pursuant to paragraph (b)
above shall be governed by the provisions of this paragraph (f) (but,
subject to any contravening valid election pursuant to paragraph (b)
above, the specified Foreign Currency or ECU or other currency unit shall,
at the Company's election, resume being the currency or currency unit, as
applicable, of payment with respect to Holders who have so elected, but
only with respect to payments on payment dates preceded by 15 Business
Days during which the circumstances which gave rise to such currency unit
becoming the currency unit of payment, no longer prevail, in each case as
determined in good faith by the Company).
(g) The "Dollar Equivalent of the Foreign Currency" shall be determined
by the Exchange Rate Agent as of each Valuation Date and shall be obtained
by converting the specified Foreign Currency into Dollars at the Market
Exchange Rate on the Valuation Date.
(h) The "Dollar Equivalent of the Currency Unit" shall be determined by
the Exchange Rate Agent as of each Valuation Date and shall be the sum
obtained by adding together the results obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate on the Valuation Date for such Component Currency.
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(i) For purposes of this Section 410 the following terms shall have the
following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including without limitation ECU.
A "Specified Amount" of a Component Currency shall mean the number
of units (including decimals) which such Component Currency represented
in the relevant currency unit, on the Conversion Date or, if ECU and
such currency unit is being used for settlement of transactions by
public institutions of or within the European Communities or was so used
after the Conversion Date, the Valuation Date or the last date the
currency unit was so used, whichever is later. If after such date the
official unit of any Component Currency is altered by way of combination
or subdivision, the Specified Amount of such Component Currency shall be
divided or multiplied in the same proportion. If after such date two or
more Component Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies shall be
replaced by an amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter be a
Specified Amount and such single currency shall thereafter be a
Component Currency. If after such date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by specified amounts of such two or
more currencies, the sum of which, at the Market Exchange Rate of such
two or more currencies on the date of such replacement, shall be equal
to the Specified Amount of such former Component Currency and such
amounts shall thereafter be Specified Amounts and such currencies shall
thereafter be Component Currencies.
"Market Exchange Rate" shall mean, as of any date, for any currency
or currency unit the noon Dollar buying rate for that currency or
currency unit, as the case may be, for cable transfers quoted in New
York City on such date as certified for customs purposes by the Federal
Reserve Bank of New York or such other rate as may be established
pursuant to Section 202 or Section 301, as the case may be. If such
rates are not available for any reason with respect to one or more
currencies or currency units for which an Exchange Rate is required, the
Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from one or
more major banks in New York City or in the country of issue of the
currency or currency unit in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified
by the Exchange Rate Agent, if there is more than one market for dealing
in any currency or currency unit by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such
currency or currency unit shall be that upon which a nonresident issuer
of securities designated in such currency or currency unit would, as
determined in its sole discretion and without liability on the part of
the Exchange Rate Agent, purchase such currency or currency unit in
order to make payments in respect of such securities.
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All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit and the Market Exchange Rate shall be in
its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and irrevocably binding upon the Company and
all Holders of the Securities and Coupons denominated or payable in the
relevant currency or currency units. In the event that a Foreign
Currency ceases to be used both by the government of the country which
issued such currency and for the settlement of transactions by public
institutions of or within the international banking community, the
Company, after learning thereof, will immediately give notice thereof to
the Trustee (and the Trustee will promptly thereafter give notice in the
manner provided in Section 106 to the Holders) specifying the Conversion
Date. In the event the ECU ceases to be used within the European
Monetary System, or any other currency unit in which Securities or
Coupons are denominated or payable, ceases to be used for the purposes
for which it was established, the Company, after learning thereof, will
immediately give notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 106 to
the Holders) specifying the Conversion Date. Any actions taken pursuant
to the parentheticals at the end of the first sentence of Section 410(e)
and at the end of Section 410(f) shall be promptly set forth in like
notices from the Company to the Trustee and then from the Trustee to the
Holders (which notices may be mailed with payment to the Holders).
Subject to the provisions of Sections 701 and 703, the Trustee
shall be fully justified and protected in relying and acting upon
information received by it from the Company and the Exchange Rate Agent,
and shall not otherwise have any duty or obligation to determine such
information independently.
SECTION 411. Securities in Global Form. If Securities of a series are
issuable in global form, as specified as contemplated by Section 202 or
Section 301, as the case may be, then, notwithstanding clause (a)(8) of
Section 202 or clause (b)(9) of Section 301, as the case may be, and the
provisions of Section 401, a global Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities represented thereby may from time to time be
reduced or increased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order (or, in the case of Medium-Term
Debt Securities, the Medium-Term Debt Securities Certificate) to be delivered
to the Trustee pursuant to Section 402 or Section 403. Subject to the
provisions of Section 402 and, if applicable, Section 403, the Trustee shall
deliver and redeliver any Security in definitive global bearer form in the
manner and upon written instructions given by the Person or Persons specified
therein or in the applicable Company Order (or, in the case of Medium-Term
Debt Securities, the Medium-Term Debt Securities Certificate). If a Company
Order (or, in the case of Medium-Term Debt Securities, Medium-Term Debt
Securities Certificate) pursuant to Section 402 or 403 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be
in writing but need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel.
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The provisions of the last sentence of the fifth paragraph of Section 402
shall apply to any Security represented by a Security in global form if such
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby, together with the written statement
contemplated by the last sentence of the fifth paragraph of Section 402.
Notwithstanding the provisions of Section 406, unless otherwise specified
as contemplated by Section 202 or Section 301, as the case may be, payment of
principal of and any premium and any interest on any Security in definitive
global form shall be made to the Person or Persons specified therein.
SECTION 412. Registered Global Notes. (a) If the Company shall establish
pursuant to Section 202 or Section 301, as the case may be, that the
Registered Securities of a series are to be issued in whole or in part in the
form of one or more global Securities (Registered Securities in the form of
global Securities being herein called "Registered Global Notes"), then the
Company shall execute and the Trustee shall, in accordance with Section 202
or Section 301, as the case may be, and the Company Order or the Medium-Term
Debt Securities Certificate, as the case may be, with respect to such series,
authenticate and deliver one or more temporary or permanent Registered Global
Notes that (i) shall represent the aggregate principal amount of the
Outstanding Securities of such series to be represented by one or more
Registered Global Notes, (ii) shall be registered in the name of the U.S.
Depositary for such Registered Global Note or Notes or the nominee of such
depositary, and (iii) may bear a legend, in addition to any other legend
required or requested by the U.S. Depositary or included on such Note
pursuant to applicable laws or regulations, substantially to the following
effect:
UNLESS AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE REGISTERED
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
U.S. DEPOSITARY TO A NOMINEE OF THE U.S. DEPOSITARY OR BY A NOMINEE OF THE
U.S. DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE U.S.
DEPOSITARY OR BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
U.S. DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR U.S. DEPOSITARY.
Notwithstanding any other provision of this Section 412 or Section 404,
unless and until it is exchanged in whole or in part for Registered
Securities in definitive form, a Registered Global Note representing all or a
portion of the Registered Securities of a series may not be transferred
except as a whole by the U.S. Depositary for such series to a nominee of such
depositary or by a nominee of such depositary to such depositary or another
nominee of such depositary or by such depositary or any such nominee to a
successor U.S. Depositary for such series or a nominee of such successor
depositary.
(b) If at any time the U.S. Depositary for the Securities of a series
notifies the Company that it is unwilling or unable to continue as U.S.
Depositary for the Securities of such series or if at any time the
U.S. Depositary for Securities of a series shall no longer be a clearing
agency registered and in good standing under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor U.S. Depositary with respect to the Securities of
such series. If a successor U.S. Depositary for the Securities of such
series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the Company will
execute, and the Trustee, upon receipt of a Company Order or a Medium-Term
Debt Securities Certificate, as the case may be, for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver Registered Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Registered
Global Note or Notes representing such series in exchange for such Registered
Global Note or Notes.
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(c) The Company may at any time and in its sole discretion determine
that all or a portion of the Registered Securities of any series issued in
the form of one or more Registered Global Notes shall no longer be
represented by such Registered Global Note or Notes. In such event, the
Company will execute, and the Trustee, upon receipt of a Company Order or a
Medium-Term Debt Securities Certificate, as the case may be, for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Registered Securities of such series in definitive
form and in an aggregate principal amount equal to the principal amount of
the Registered Global Note or Notes representing such series, or portion
thereof to be exchanged, in exchange for such Registered Global Note or
Notes.
(d) If the Registered Securities of any series shall have been issued in
the form of one or more Registered Global Notes and if an Event of Default
with respect to the Securities of such series shall have occurred and be
continuing, the Company will promptly execute, and the Trustee, upon receipt
of a Company Order or a Medium-Term Debt Securities Certificate, as the case
may be, for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Registered Securities of such series,
in definitive form and in an aggregate principal amount equal to the
principal amount of the Registered Global Note or Notes representing such
series in exchange for such Registered Global Note or Notes.
(e) If specified by the Company pursuant to Section 202 or Section 301,
as the case may be, with respect to Registered Securities of a series, the
U.S. Depositary for such series of Registered Securities may surrender a
Registered Global Note for such series of Securities in exchange in whole or
in part for Registered Securities of such series in definitive form on such
terms as are acceptable to the Company and such depositary. Thereupon, the
Company shall execute and the Trustee shall authenticate and deliver, without
charge:
(i) to each Person specified by the U.S. Depositary a new Registered
Security or Securities of the same series in definitive form registered in
such names and in such authorized denominations as the U.S. Depositary for
such Registered Global Note, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee, and in
exchange for such Person's beneficial interest in the Registered Global
Note; and
(ii) to the U.S. Depositary a new Registered Global Note in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Registered Global Note and the aggregate principal
amount of Registered Securities in definitive form delivered to Holders
thereof.
(f) Upon the exchange of a Registered Global Note for Registered
Securities in definitive form, such Registered Global Note shall be cancelled
by the Trustee. Securities issued in exchange for a Registered Global Note
pursuant to this Section 412 shall be registered in such names and in such
authorized denominations as the U.S. Depositary for such Registered Global
Note, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such
Securities to the Persons in whose names such Securities are so registered.
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ARTICLE FIVE
Satisfaction and Discharge
SECTION 501. Satisfaction and Discharge of Indenture in Respect of Any
Series of Securities. This Indenture shall upon Company Request cease to be
of further effect with respect to a series of Securities (except as to any
surviving rights of (as applicable) registration of transfer or exchange of
Securities and Coupons, if any, of such series herein expressly provided
for), and the Trustee, at the request and expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to such series, when
(1) either
(A) all Securities and Coupons, if any, of such series theretofore
authenticated and delivered (other than (i) Securities and Coupons of
such series which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 405 and (ii) Securities and
Coupons of such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1103) have been delivered to the Trustee for
cancelation; or
(B) all such Securities and Coupons of such series not theretofore
delivered to the Trustee for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currency unit in which such Securities and Coupons of such series are
payable sufficient to pay and discharge the entire indebtedness on such
Securities and Coupons of such series not theretofore delivered to the
Trustee for cancelation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of Securities
and Coupons of such series which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to such series of Securities; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of the
Securities of the series under this Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture with
respect to a series, the obligations of the Company to the Trustee under
Section 707, the obligations of the Trustee to any Authenticating Agent under
Section 715 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 502 and the last paragraph of Section 1103 shall
survive.
SECTION 502. Application of Trust Money. Subject to the provisions of the
last paragraph of Section 1103, all money deposited with the Trustee pursuant
to Sections 501 and 503 (and all money received as payment in connection with
U.S. Government Obligations and Foreign Government Securities deposited
pursuant to Section 503) shall be held in trust and applied by it, in
accordance with the provisions of the Securities and Coupons, if any, and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited
with the Trustee.
SECTION 503. Satisfaction, Discharge and Defeasance of Securities of Any
Series. (a) Unless pursuant to Section 202 or Section 301, as the case may
be, provision is made that this Section shall not be applicable to Securities
and Coupons, if any, of any series, at the Company's option, either:
(i) the Company will be deemed to have been Discharged (as defined
below) from its obligations with respect to Securities and Coupons, if
any, of such series, or
(ii) the Company will cease to be under any obligation with respect to
such series to comply with any term, provision or condition set forth in
(x) Sections 901, 902, 1104 and 1105 or (y) the instrument or instruments
setting forth the terms, provisions or conditions of such series pursuant
to Section 202 or Section 301, as the case may be (provided, in the case
of this subclause (y), that such instrument or instruments specify which
terms, provisions or conditions, if any, are subject to this
clause (a)(ii) and that no such instrument may specify that the Company
may cease to comply with any obligations as to which it may not be
Discharged pursuant to the definition of "Discharged").
(b) A Discharge pursuant to clause (a)(i) above shall be effective with
respect to the Securities and Coupons, if any, of such series on the first
day after the applicable conditions set forth below in (i) and either (ii) or
(iii) have been satisfied, and the Company's release from its obligations to
comply with certain obligations with respect to such series pursuant to
clause (a)(ii) above shall be effective with respect to the Securities and
Coupons, if any, of such series on the first day after the applicable
conditions set forth below in (i) and either (ii) or (iii) have been
satisfied:
(i) the Company has:
(A) paid or caused to be paid all other sums payable with respect
to the Outstanding Securities and Coupons, if any, of such series (in
addition to any required under clause (b)(ii) or (b)(iii)); and
(B) delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire
indebtedness on all Outstanding Securities and Coupons, if any, of any
such series have been complied with;
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(ii) (A) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as a trust fund specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the
Securities and Coupons, if any, of such series (1) money in an amount (in
such currency, currencies or currency unit or units in which any
Outstanding Securities and Coupons, if any, of such series are payable) or
(2) in the case of Securities and Coupons, if any, denominated in Dollars,
U.S. Government Obligations (as defined below) or, in the case of
Securities and Coupons, if any, denominated in a Foreign Currency, Foreign
Government Securities (as defined below), which through the payment of
interest and principal in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal (including any premium) and interest, if any, under the
Securities and Coupons, if any, of such series, money in an amount or (3)
a combination of (1) and (2), which in any case of clauses (1), (2) and
(3) is sufficient (in the opinion with respect to (2) and (3) of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee) to pay and
discharge each installment of principal of (including premium, if any,
on), and interest, if any, on, the Outstanding Securities and Coupons, if
any, of such series on the dates such installments of interest or
principal are due, in the currency, currencies or currency unit or units,
in which such Securities and Coupons, if any, are payable;
(B)(1) no Event of Default or event (including such deposit) which with
notice or lapse of time would become an Event of Default shall have
occurred and be continuing on the date of such deposit, and (2) no Event
of Default as defined in clause (5) or (6) of Section 601, or event which
with notice or lapse of time or both would become an Event of Default
under either such clause, shall have occurred within 91 days after the
date of such deposit;
(C) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities and Coupons, if any,
of such series will not recognize income, gain or loss for Federal income
tax purposes as a result of the Company's exercise of its option under
this Section 503 and will be subject to Federal income tax in the same
amount, in the same manner and at the same times as would have been the
case if such option had not been exercised; and
(D) if the Securities of such series are then listed on the New York
Stock Exchange, the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that such Securities will not be delisted as the
result of the Company's exercise of its option under this Section 503;
(iii) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section 202
or Section 301, as the case may be, to be applicable to the Securities and
Coupons, if any, of such series.
(c) Any deposits with the Trustee referred to in clause (b)(ii)(A) above
will be made under the terms of an escrow trust agreement in form and
substance satisfactory to the Trustee. If any Outstanding Securities and
Coupons, if any, of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any mandatory redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement will provide therefor and the Company will make arrangements
for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company.
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SECTION 504. Reinstatement. If the Trustee is unable to apply any money,
U.S. Government Obligations or Foreign Government Securities in accordance
with Section 501 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities and Coupons, if any, of such series shall bc
revived and reinstated as though no deposit had occurred pursuant to
Section 501 until such time as the Trustee is permitted to apply all such
money, U.S. Government Obligations or Foreign Government Securities in
accordance with Section 501; provided, however, that if the Company has made
any payment of interest on or principal of (and premium, if any) on any
Securities and Coupons, if any, of such series because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the
Holders of such series of Securities and Coupons, if any, to receive such
payment from the money, U.S. Government Obligations or Foreign Government
Securities held by the Trustee.
SECTION 505. Definitions. The following terms, as used in this Article,
shall have the following meanings:
"Discharged" means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under,
the Securities and Coupons, if any, of the series as to which this
Section is specified as applicable as aforesaid and to have satisfied all
the obligations under this Indenture relating to the Securities and
Coupons, if any, of such series (and the Trustee, at the request and
expense of the Company, will execute proper instruments acknowledging the
same), except (A) the rights of Holders thereof to receive, from the trust
fund described in Section 503(b)(ii)(A), payment of the principal of (and
premium, if any) and the interest, if any, on such Securities and Coupons,
if any, when such payments are due, (B) the Company's obligations with
respect to such Securities and Coupons, if any, under Sections 404 and 405
(insofar as applicable to Securities of such series), 502, 1102 and 1103
(last paragraph only) and the Company's obligations to the Trustee under
Section 707, (C) the rights of Holders of Securities of any series with
respect to the currency or currency units in which they are to receive
payments of principal, premium, if any, and interest, if any, and (D) the
rights, powers, trusts, duties and immunities of the Trustee hereunder,
will survive such discharge. The Company will reimburse the trust fund for
any loss suffered by it as a result of any tax, fee or other charge
imposed on or assessed against deposited U.S. Government Obligations or
Foreign Government Securities, as the case may be, or any principal or
interest paid on such obligations, and, subject to the provisions of
Section 707, will indemnify the Trustee against any claims made against
the Trustee in connection with any such loss.
"Foreign Government Securities" means, with respect to Securities and
Coupons, if any, of any series that are denominated in a Foreign Currency,
securities that are (i) direct obligations of the government that issued
or caused to be issued such currency for the payment of which obligations
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
such government the timely payment of which is unconditionally guaranteed
as a full faith and credit obligation by such government, which, in either
case under clause (i) or (ii), are not callable or redeemable at the
option of the issuer thereof.
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"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation of the
United States of America, which, in either case under clause (i) or (ii),
are not callable or redeemable at the option of the issuer thereof, and
will also include a depository receipt issued by a bank or trust company
as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
ARTICLE SIX
Remedies
SECTION 601. Events of Default. "Event of Default" with respect to any
series of Securities means each one of the events specified below in this
Section 601, unless it is either inapplicable to a particular series or is
specifically deleted or modified in or pursuant to the supplemental
indenture, Board Resolution or Medium-Term Debt Securities Certificate
establishing such series of Securities:
(1) default in the payment of any installment of interest upon any of
the Securities of such series, as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any, on
any of the Securities of such series, as and when the same shall become
due and payable (subject to clause (3) below) either at maturity, upon
redemption, by declaration or otherwise; or
(3) default in the making of any payment for a sinking, purchase or
analogous fund provided for in respect of such series of Securities, as
and when the same shall become due and payable; or
(4) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in respect
of the Securities of such series, or in this Indenture contained with
respect to such series, for a period of 90 days after the date on which
written notice of such failure requiring the Company to remedy the same
and stating that such notice is a `Notice of Default' hereunder, shall
have been given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the holders of at least 25%
in aggregate principal amount of the Securities of such series at the time
Outstanding; or
(5) entry of a decree or order for relief in respect of the Company by a
court having jurisdiction in the premises in an involuntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the
Company or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
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(6) commencement by the Company of a voluntary case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent by the Company to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) of the Company or for any
substantial part of its property, or any general assignment by the Company
for the benefit of creditors, or failure by the Company generally to pay
its debts as they become due, or the taking by the Company of any
corporate action in furtherance of any of the foregoing; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 602. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in each and every such case,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series or, in the case of an
Event of Default specified in Clause (5) or (6) of Section 601, of all series
(voting as a class) with respect to which such Event of Default has occurred
and is continuing, may declare the principal amount (or, if the Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all of
the Securities of that series, together with accrued interest thereon, if
any, to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount), together with accrued interest
thereon, if any, shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) in Dollars all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
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(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of Securities of that series
which has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 613.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 603. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default shall be made in the payment of any installment of interest
on any Security or Coupon as and when the same shall become due and
payable, and such default shall have continued for the period of grace
provided for with respect to such Security or Coupon, as the case may be,
(2) default shall be made in the payment of the principal of or premium,
if any, on any Security as and when the same shall have become due and
payable (subject to clause (3) below), whether at maturity of the Security
or upon redemption or by declaration or otherwise, and such default shall
have continued for any period of grace provided for with respect to such
Security, or
(3) default shall be made in the making of any payment for any sinking,
purchase or analogous fund provided for in respect of any Security as and
when the same shall become due and payable, and such default shall have
continued for any period of grace provided for with respect to such
Security,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities and Coupons, if any, the whole amount then due
and payable on such Securities and Coupons, if any, for principal (and
premium, if any) and interest, if any, and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue installments of interest, if any, at
the rate or rates prescribed therefor in such Securities and Coupons, if any,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such Securities and
Coupons, if any, and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and Coupons, if any, wherever situated.
If an Event of Default with respect to Securities and Coupons, if any, of
any series occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of
Securities and/or Coupons of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 604. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due
and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 707.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities and/or Coupons or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 605. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities and
Coupons, if any, may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons, if any, or the production
thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities and Coupons, if any, in respect of which such
judgment has been recovered.
SECTION 606. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and Coupons, if any, and the notation thereon
of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: to the payment of all amounts due the Trustee under Section 707;
SECOND: to the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Securities and Coupons, if
any, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities and/or Coupons for
principal (and premium, if any) and interest, if any, respectively; and
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THIRD: the balance, if any, to the Person or Persons entitled thereto.
SECTION 607. Limitation on Suits. No Holder of Securities of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series shall
have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series or, in the case of an Event of
Default specified in Clause (5) or (6) of Section 601, of all series
(voting as a class) with respect to which such Event of Default has
occurred and is continuing, shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series or, in the
case of an Event of Default specified in Clause (5) or (6) of Section 601,
of all series (voting as a class) with respect to which such Event of
Default has occurred and is continuing;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture (including without limitation the provisions of
Section 612) to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 608. Unconditional Right of Holders To Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security or any Coupon shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 406) interest, if any, on such Security or
Coupon on the Stated Maturity or Maturities expressed in such Security (or,
in the case of redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
SECTION 609. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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SECTION 610. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and/or Coupons, if any, in the last paragraph of
Section 405, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 611. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities and/or Coupons to exercise any
right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Subject to the provisions of Section 607, every right
and remedy given by this Article or by law to the Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient,
by the Trustee or by the Holders, as the case may be.
SECTION 612. Control by Holders. The Holders of not less than a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, with respect to the Securities of such series;
provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture.
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 701, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Trust Officer or Officers of the Trustee,
determine that the action so directed would involve the Trustee in
personal liability or would be unduly prejudicial to Holders not joining
in such direction.
SECTION 613. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may
on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or interest,
if any, on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Ten
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist with respect to
such series, and any Event of Default with respect to such series arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
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SECTION 614. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of a Security and/or Coupon by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit in the manner and to the
extent provided in Section 315(e) of the Trust Indenture Act, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on any
Security or the payment of interest on any Coupon on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 615. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law had been enacted.
ARTICLE SEVEN
The Trustee
SECTION 701. Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or
not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 702. Notice of Defaults. Within 90 days after the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit to the Holders of Securities of such series notice as provided
in Section 106 of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any,
on) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors
or Responsible Trust Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of
Securities of such series; provided further that in the case of any default
of the character specified in Section 601(4) with respect to Securities of
such series, no such notice to Holders shall be given until at least 30 days
after the occurrence of such default. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
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SECTION 703. Certain Rights of Trustee. Subject to the provisions of
Section 701 and subject to Sections 315(a) through (d) of the Trust Indenture
Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting in reliance upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
counsel, and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or counsel appointed with due care
(and, in the case of any agent, with the prior written consent of the
Company; provided, however, that the Company's prior written consent shall
not be required in connection with the appointment of an agent as a result
of or in connection with a default or an Event of Default) by it
hereunder; and
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(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
SECTION 704. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 705. May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities or warrants
to purchase Securities and, subject to Sections 708 and 713, may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such other agent.
SECTION 706. Money Held in Trust. Except as provided in Section 114, money
held by the Trustee or any Paying Agent in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
or any Paying Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 707. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time in Dollars such compensation
as shall be agreed to in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee in Dollars upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including
taxes (other than taxes based upon, or measured or determined by, the
income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest,
if any, on particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 601(5) and Section 601(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency
or other similar law. The provisions of this Section shall survive the
termination of this Indenture.
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SECTION 708. Disqualification; Conflicting Interests. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. To the extent permitted by such
Act, the Trustee shall not be deemed to have a conflicting interest by virtue
of (i) being a trustee under this Indenture with respect to Securities of
more than one series, or (ii) being a trustee under the indenture dated as of
December 15, 1991, between the Company and State Street Bank and Trust
Company (as successor to The First National Bank of Boston).
SECTION 709. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee for each series of Securities hereunder which shall be
either (1) a corporation or other Person organized and doing business under
the laws of the United States of America, any State thereof or the District
of Columbia, which is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by Federal or State
authority or (2) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as Trustee
pursuant to a rule, regulation or order of the Commission, which is
authorized under such laws to exercise corporate trust powers and is subject
to supervision or examination by authority of such foreign government or a
political subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees; in either
case having a combined capital and surplus of at least $50,000,000. If such
corporation or Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation or Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company shall
serve as trustee for the Securities of any series issued hereunder. If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 710. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable
requirements of Section 711.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 711 shall
not have been delivered to the resigning Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 708 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security of a series as to which the Trustee has a conflicting
interest for at least six months, or
(2) the Trustee for a series shall cease to be eligible under
Section 709 and shall fail to resign after written request therefor by the
Company or by any Holder of Securities of such series, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to the series, or, in its discretion, with respect to
all Securities, or (ii) subject to Section 614, any Holder who has been a
bona fide Holder of a Security for at least six months (and, in the case of
Clause (1) above, who is a holder of a Security of a series as to which the
Trustee has a conflicting interest) may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to the series, or in the case of clause
(3), with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of the Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more of or all such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and such
successor Trustee or Trustees shall comply with the applicable requirements
of Section 711. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 711, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner required by Section 711, any Holder who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series by giving
notice of such event to all Holders of Securities of such series as provided
by Section 106. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its
Corporate Trust Office.
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SECTION 711. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees cotrustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture, the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 712. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust
business of the Trustee, including the trust created by this Indenture, shall
be the successor of the Trustee hereunder, provided that such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
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SECTION 713. Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or of any
other obligor upon the Securities or the Coupons, if any), the Trustee shall
be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
SECTION 714. Judgment Currency. If, for the purpose of obtaining a judgment
in any court with respect to any obligation of the Company hereunder or under
any Security or Coupon, it shall become necessary to convert into any other
currency or currency unit any amount in the currency or currency unit due
hereunder or under such Security or Coupon, then such conversion shall be
made at the Conversion Rate (as defined below) as in effect on the date the
Company shall make payment to any Person in satisfaction of such judgment. If
pursuant to any such judgment, conversion shall be made on a date other than
the date payment is made and there shall occur a change between such
Conversion Rate and the Conversion Rate as in effect on the date of payment
or distribution, the Company agrees to pay such additional amounts (if any)
as may be necessary to ensure that the amount paid is the amount in such
other currency or currency unit which, when converted at the Conversion Rate
as in effect on the date of payment or distribution, is the amount then due
hereunder or under such Security or Coupon. Any amount due from the Company
under this Section 714 shall be due as a separate debt and is not to be
affected by or merged into any judgment being obtained for any other sums due
hereunder or in respect of any Security or Coupon so that in any event the
Company's obligations hereunder or under such Security or Coupon will be
effectively maintained as obligations in such currency or currency unit. In
no event, however, shall the Company be required to pay more in the currency
or currency unit stated to be due hereunder or under such Security or Coupon.
For purposes of this Section 714, "Conversion Rate" shall mean, as of any
date, for any currency or currency unit into which an amount due hereunder or
under any Security or Coupon is to be converted, the noon buying rate in the
other currency or currency unit for that currency or currency unit for cable
transfers quoted in New York City on such date as certified for customs
purposes by the Federal Reserve Bank of New York. If such rates are not
available for any reason with respect to one or more currencies or currency
units for which a Conversion Rate is required, the Exchange Rate Agent shall
use, in its sole discretion and without liability on its part, such quotation
of the Federal Reserve Bank of New York as of the most recent available date,
or quotations from one or more major banks in New York City or in the country
of issue of the currency in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in a
currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency or currency unit
shall be that upon which a nonresident issuer of securities denominated in
such currency or currency unit would, as determined in its sole discretion
and without liability on the part of the Exchange Rate Agent, purchase such
currency or currency unit in order to make payments in respect of such
securities. If there does not exist a quoted exchange rate in any currency or
currency unit (the "First Currency") for another currency unit (the "Second
Currency"), then the Conversion Rate for the Second Currency shall be equal
to equivalent amount in the First Currency obtained by converting the
Specified Amount of each Component Currency of the Second Currency into the
First Currency at the Conversion Rate (determined as provided above) for each
such Component Currency on such date (or, if the First Currency is a currency
unit for which there is no quoted exchange rate in any Component Currency, by
converting the Specified Amount of each Component Currency of the Second
Currency into the Specified Amount of each Component Currency of the First
Currency at the Conversion Rate (determined as provided above) for each such
Component Currency on such date).
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SECTION 715. Appointment of Authenticating Agent. The Company may appoint
an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof or pursuant
to Section 405, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by
an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
shall be acceptable to the Trustee and shall at all times be a corporation
having a combined capital and surplus of not less than the equivalent of
$50,000,000 and subject to supervision or examination by Federal, state or
District of Columbia authority or the equivalent foreign authority, in the
case of an Authenticating Agent who is not organized and doing business under
the laws of the United States of America, any state thereof or the District
of Columbia. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of such Authenticating Agent, shall continue to
be an Authenticating Agent; provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Company may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Trustee. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Company may appoint a successor
Authenticating Agent which shall be acceptable to the Trustee and shall mail,
or cause to be mailed, written notice of such appointment by first-class
mail, postage prepaid, to all Holders of Registered Securities, if any, of
the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating
Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated herein issued under
the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY, as Trustee
By
-------------------------------
As Authenticating Agent
By
-------------------------------
Authorized [Officer] [Signatory]
If all the Securities of a series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment or other
place where the Company wishes to have Securities of such series
authenticated upon original issuance, the Company shall appoint in accordance
with this Section an Authenticating Agent (which may be an Affiliate of the
Company if eligible to be appointed as an Authenticating Agent hereunder)
having an office in such Place of Payment or other place designated by the
Company with respect to such series of Securities.
ARTICLE EIGHT
Holders' Lists and Reports by Trustee and Company
SECTION 801. Company To Furnish Trustee Names and Addresses of Holders. The
Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than January 15 and July 15 in each year, a
list in such form as the Trustee may reasonably require and which shall
comply with the requirements of the Trust Indenture Act, of the names and
addresses of the Holders of each series of Registered Securities as of the
preceding January 1 or July 1, as the case may be, and such information
concerning the Holders of Bearer Securities which is known to the Company
or any Paying Agent other than the Company; provided, however, that the
Company and such Paying Agents shall have no obligation to
investigate any matter relating to any Holder of a Bearer Security or a
Coupon; and
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(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than
15 days prior to the time such list is furnished, and such information
concerning the Holders of Bearer Securities which is known to the Company
or any such Paying Agent; provided, however, that the Company and such
Paying Agents shall have no obligation to investigate any matter relating
to any Holder of a Bearer Security or a Coupon;
notwithstanding the foregoing subsections (a) and (b), at such times as the
Trustee is the Security Registrar and Paying Agent with respect to a
particular series of Securities, no such list shall be required to be
furnished in respect of such series.
SECTION 802. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in
the most recent list furnished to the Trustee as provided in Section 801 and
the names and addresses of Holders of each series received by the Trustee in
any capacity as Security Registrar or Paying Agent. The Trustee may destroy
any list furnished to it as provided in Section 801 upon receipt of a new
list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them shall be held accountable by
reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
SECTION 803. Reports by Trustee. (a) Within 60 days after May 15 of each
year commencing with the May 15 occurring after the initial issuance of
Securities hereunder, the Trustee shall transmit to the Holders of
Securities, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, a brief report, dated as of such May 15, if required by
Section 313(a) of the Trust Indenture Act. The Trustee also shall comply
with Section 313(b) of the Trust Indenture Act and shall transmit to Holders,
in the manner and to the extent provided in said Section 313(c), such other
reports, if any, as may be required pursuant to the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
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SECTION 804. Reports by Company. The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information,
documents and reports, and such summaries thereof and copies of portions
thereof, as may be required pursuant to Section 314 of the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same shall be
so required to be filed with the Commission.
ARTICLE NINE
Consolidation, Merger, Conveyance or Transfer
SECTION 901. Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States of America or any state or the District of Columbia, and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, and premium, if any, and interest,
if any, on all the Securities and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 902. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 901, the
successor corporation formed by such consolidation or into which the Company
is merged or to which such conveyance or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein; and in the event of any
such conveyance or transfer, the Company (which term shall for this purpose
mean the Person named as the "Company" in the first paragraph of this
instrument or any successor corporation which shall have theretofore become
such in the manner prescribed in Section 901) shall be discharged from all
liability under this Indenture and in respect of the Securities and may be
dissolved and liquidated.
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ARTICLE TEN
Supplemental Indentures
SECTION 1001. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by or pursuant to a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities;
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company;
(3) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such
Event of Default is applicable);
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to facilitate the issuance of Securities in
bearer form, registrable or not registrable as to principal, and with or
without interest coupons; to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer Securities,
to permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations; provided that any such addition or
change shall not adversely affect the interests of the Holders of
Securities of any series or any related Coupons in any material respect;
(5) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision;
(6) to establish the form or terms of Securities of any series as
permitted by Sections 202 and 301;
(7) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of
Section 711(b);
(8) if allowed under applicable laws and regulations, to permit payment
in the United States of principal, premium or interest on Bearer
Securities or Coupons, if any;
(9) to provide for the issuance of uncertificated Securities of one or
more series in addition to or in place of certificated Securities;
(10) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein; or
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(11) to make any other provisions with respect to matters or questions
arising under this Indenture; provided such other provisions as may be
made shall not adversely affect the interests of the Holders of
outstanding Securities of any series in any material respect.
SECTION 1002. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
602, or change any Place of Payment where, or the currency, currencies or
currency unit or units in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
affect adversely the terms, if any, of conversion of any Security into
stock or other securities of the Company or of any other corporation,
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture,
(3) change any obligation of the Company, with respect to Outstanding
Securities of a series, to maintain an office or agency in the places and
for the purposes specified in Section 1102 for such series, or
(4) modify any of the provisions of this Section, Section 613 or
Section 1107, except to increase any such percentage or to provide with
respect to the Securities of any particular series the right to condition
the effectiveness of any supplemental indenture as to that series on the
consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which provision
may be made pursuant to Section 202 or Section 301, as the case may be,
without the consent of any Holder) or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1107, or the
deletion of this proviso, in accordance with the requirements of
Section 711(b) and 1001(7).
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For purposes of this Section 1002, if the Securities of any series are
issuable upon the exercise of warrants, each holder of an unexercised and
unexpired warrant with respect to such series shall be deemed to be a Holder
of Outstanding Securities of such series in the amount issuable upon the
exercise of such warrant. For such purposes, the ownership of any such
warrant shall be determined by the Company in a manner consistent with
customary commercial practices. The Trustee for such series shall be entitled
to rely on an Officers' Certificate as to the principal amount of Securities
of such series in respect of which consents shall have been executed by
holders of such warrants.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive (in addition to
the opinion which the Trustee is entitled to receive pursuant to
Section 202), and (subject to Section 701) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties, immunities or
liabilities under this Indenture or otherwise.
SECTION 1004. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 1005. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 1006. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such
series.
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ARTICLE ELEVEN
Covenants
SECTION 1101. Payment of Principal, Premium and Interest. The Company
covenants and agrees for the benefit of each series of Securities and
Coupons, if any, that it will duly and punctually pay the principal of (and
premium, if any, on) and interest, if any, on the Securities and Coupons, if
any, of that series in accordance with the terms of the Securities and
Coupons, if any, of such series and this Indenture.
SECTION 1102. Maintenance of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company will maintain in each
Place of Payment for such series an office or agency where Securities of that
series may be presented or surrendered for payment, where Securities of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. If Securities of a series are
issuable as both Registered or Bearer Securities or only as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, The
City of New York, an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served and where Bearer Securities of
that series and related Coupons may be presented or surrendered for payment
in the circumstances described in the proviso contained in the last sentence
of this first paragraph of Section 1102 (and not otherwise), (B) subject to
any laws or regulations applicable thereto, in a Place of Payment for that
series which is located outside the United States, an office or agency where
Securities of that series and related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable
on Securities of that series pursuant to Section 1108); provided, however,
that if the Securities of that series are listed on any stock exchange
located outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent for the Securities of that series in
any required city located outside the United States, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States, an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee and the Holders of the location, and any change
in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency in respect of any
series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may
be made and notices and demands may be made or served at the office or agency
of the Company in the Borough of Manhattan, The City of New York, except that
Bearer Securities of that series and the related Coupons may be presented and
surrendered for payment (including payment of any additional amounts payable
on Bearer Securities of that series pursuant to Section 1108) at the London
office of the Trustee (or an agent with a London office appointed by the
Trustee and acceptable to the Company), and the Company hereby appoints the
same as its agent to receive such respective presentations, surrenders,
notices and demands. No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer
to an account maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are denominated and payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any additional amounts payable on Securities of such
series pursuant to Section 1108) shall be made at the office of the Company's
Paying Agent in the Borough of Manhattan, The City of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium,
interest or additional amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company
in accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
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The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an
office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt
written notice to the Trustee and the Holders of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 1103. Money for Securities Payments To Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any, on) or interest, if any, on any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the relevant currency (or a sufficient number of
currency units, as the case may be) sufficient to pay the principal (and
premium, if any, on) or interest so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, at or prior to the opening of business on each due date
of the principal of (and premium, if any, on) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to
act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any, on) or interest, if any, on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment
of principal (and premium, if any, on) or interest, if any, on the
Securities of that series; and
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust
by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect
to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if
any, on) or interest, if any, on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company, or (if then
held by the Company) shall be discharged from such trust; and the Holder of
such Security and Coupons, if any, shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense and at the direction of the Company
cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City of New York, notice that such money remains
unclaimed and that, after a date specified herein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company. All moneys payable to the
Company by the Trustee or any Paying Agent as provided in the preceding
sentence shall be paid to the Company on May 31 of each year.
SECTION 1104. Restrictions on Secured Debt. The Company will not itself,
and will not permit any Restricted Subsidiary to, incur, issue, assume, or
guarantee any Debt, whether or not evidenced by negotiable instruments or
securities, secured after the date hereof by Mortgage on any Principal
Property of the Company or any Restricted Subsidiary or any shares of Capital
Stock of or Debt of any Restricted Subsidiary, without effectively providing
that all the Securities Outstanding (together with, if the Company shall so
determine, any other Debt of the Company or such Restricted Subsidiary then
existing or thereafter created which is not subordinate to any of the
Securities) shall be secured equally and ratably with (or, at the option of
the Company, prior to) such secured Debt, so long as such secured Debt shall
be so secured, unless, after giving effect thereto, the aggregate amount of
all such secured Debt plus all Attributable Debt of the Company and its
Restricted Subsidiaries with respect to sale and leaseback transactions to
which Section 1105 is applicable would not exceed 10% of Consolidated Net
Tangible Assets; provided, however, that this Section shall not apply to, and
there shall be excluded from secured Debt in any computation under this
Section, Debt secured by:
(a) Mortgages on property of, or on any shares of Capital Stock of or
Debt of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(b) Mortgages in favor of the Company or any Restricted Subsidiary;
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(c) Mortgages in favor of any governmental body to secure progress,
advance or other payments pursuant to any contract or provisions of any
statute;
(d) Mortgages on property, shares of Capital Stock or Debt existing at
the time of acquisition thereof (including acquisition through merger or
consolidation) or to secure the payment of all or any part of the purchase
price thereof or construction thereon or to secure any Debt incurred prior
to, at the time of, or within 180 days after the later of the acquisition
of such property, shares of Capital Stock or Debt or the completion of
construction for the purpose of financing all or any part of the purchase
price thereof or construction thereon;
(e) Mortgages securing obligations issued by a state, territory or
possession of the United States, any political subdivision of any of the
foregoing, or the District of Columbia, or any instrumentality of any of
the foregoing to finance the acquisition or construction of property and
on which the interest is not, in the opinion of tax counsel of recognized
standing or in accordance with a ruling issued by the Internal Revenue
Service, includible in gross income of the holder by reason of Section 103
of the Internal Revenue Code (or any successor to such provision) as in
effect at the time of the issuance of such obligations; or
(f) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Mortgage referred
to in the foregoing clauses (a) to (e), inclusive; provided, however, that
such extension, renewal or replacement Mortgage shall be limited to all or
part of the same property, shares of Capital Stock or Debt that secured
the Mortgage so extended, renewed or replaced (plus improvements on such
property).
SECTION 1105. Restrictions on Sales and Leasebacks. The Company will not
itself, and will not permit any Restricted Subsidiary to, enter into any
transaction after the date hereof with any bank, insurance company or other
lender or investor, or to which any such bank, company, lender or investor is
a party, providing for the leasing by the Company or a Restricted Subsidiary
of any Principal Property which has been or is to be sold or transferred by
the Company or such Restricted Subsidiary to such bank, company, lender or
investor, or to any person to whom funds have been or are to be advanced by
such bank, company, lender or investor on the security of such Principal
Property (herein referred to as a "sale and leaseback transaction") unless,
after giving effect thereto, the aggregate amount of all Attributable Debt
with respect to all such transactions plus all secured Debt to which Section
1104 is applicable would not exceed 10% of Consolidated Net Tangible Assets.
This covenant shall not apply, and there shall be excluded from Attributable
Debt in any computation under this Section, Attributable Debt with respect to
any sale and leaseback transaction if:
(a) the lease in such sale and leaseback transaction is for a period,
including renewal rights, of not in excess of three years; or
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(b) the Company or a Restricted Subsidiary, within 180 days after the
sale or transfer shall have been made by the Company or by a Restricted
Subsidiary, applies an amount equal to the greater of the net proceeds of
the sale of the Principal Property so leased at the time of entering into
such arrangement (as determined in a reasonable manner approved by the
Board of Directors) (i) to the retirement of Securities or other Funded
Debt of the Company ranking on a parity with or senior to all the
Securities, or the retirement of the Funded Debt of a Restricted
Subsidiary; provided, however, that the amount to be applied to the
retirement of such Funded Debt of the Company or a Restricted Subsidiary
shall be reduced by (x) the principal amount of any Securities, or other
notes or debentures constituting such Funded Debt, delivered within such
180-day period to the trustee or other applicable trustee for retirement
and cancelation and (y) the principal amount of such Funded Debt, other
than items referred to in the preceding clause (x), voluntarily retired by
the Company or a Restricted Subsidiary within 180 days after such sale;
and provided, further, that, notwithstanding the foregoing, no retirement
referred to in this clause (i) may be effected by payment at maturity or
pursuant to any mandatory sinking fund payment or any mandatory prepayment
provision, or (ii) to the purchase of other property which will constitute
a Principal Property having a fair market value, in the opinion of the
Board of Directors, at least equal to the fair market value of the
Principal Property leased in such sale and leaseback transaction; or
(c) such sale and leaseback transaction is entered into prior to, at the
time of, or within 180 days after the later of the acquisition of the
Principal Property or the completion of construction thereon; or
(d) the lease in such sale and leaseback transaction secures or relates
to obligations issued by a state, territory or possession of the United
States, or any political subdivision of any of the foregoing, the District
of Columbia, or any instrumentality of any of the foregoing to finance the
acquisition or construction of property and on which the interest is not,
in the opinion of tax counsel of recognized standing or in accordance with
a ruling issued by the Internal Revenue Service, includible in gross
income of the holder by reason of Section 103 of the Internal Revenue Code
(or any successor to such provision) as in effect at the time of the
issuance of such obligations; or
(e) such sale and leaseback transaction is entered into between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries.
SECTION 1106. Statement by Officers as to Default. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year, a written
certificate signed by the principal executive officer, the principal
financial officer or the principal accounting officer of the Company, stating
that:
(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under such officer's
supervision; and
(2) to such officer's knowledge, based on such review, the Company has
fulfilled all its obligations, and has complied with all conditions and
covenants, under this Indenture throughout such year, or, if there has
been a default in the fulfillment of any such obligation, condition or
covenant, specifying each such default known to him and the nature and
status thereof. For purposes of this Section 1106, compliance shall be
determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
SECTION 1107. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth
in Section 1104 or Section 1105 if before the time for such compliance the
Holders of not less than a majority in principal amount of the Outstanding
Securities of all series affected thereby shall, by Act of such Holders
(acting as one class), either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
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SECTION 1108. Additional Amounts. If the Securities of a series provide for
the payment of additional amounts, the Company will pay to the Holder of any
Security of such series or any related Coupon additional amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of,
any Security of any series or payment of any related Coupon or the net
proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of additional
amounts provided for in this Section to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant
to the provisions of this Section and express mention of the payment of
additional amounts (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions hereof where
such express mention is not made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with
respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date
of payment of principal and any premium or interest if there has been any
change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's Paying
Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that
series or any related Coupons who are United States Aliens (as defined in
such Securities) without withholding for or on account of any tax, assessment
or other governmental charge described in the Securities of that series. If
any such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such
Payments to such Holders of Securities or Coupons and the Company will pay to
the Trustee or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in reliance
on any Officers' Certificate furnished pursuant to this Section.
ARTICLE TWELVE
Redemption of Securities
SECTION 1201. Applicability of Article. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by
Section 202 or Section 301, as the case may be, for Securities of any series)
in accordance with this Article.
SECTION 1202. Election To Redeem; Notice to Trustee. If the Company shall
desire to exercise the right to redeem all, or, as the case may be, any part
of the Securities of any series, the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed. In the
case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
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SECTION 1203. Selection by Trustee of Securities To Be Redeemed. If less
than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Securities of such
series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple of $1,000 in excess
thereof, except as otherwise specified as contemplated by Section 202 or
Section 301, as the case may be) of the principal amount of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1204. Notice of Redemption. Notice of redemption shall be given not
less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed, as provided in Section 106.
Each such notice of redemption shall specify the Redemption Date, the
Redemption Price, the Place or Places of Payment, that the Securities of such
series are being redeemed at the option of the Company pursuant to provisions
contained in the terms of the Securities of such series or in a supplemental
indenture establishing such series, if such be the case, together with a
brief statement of the facts permitting such redemption, that on the
Redemption Date the Redemption Price will become due and payable upon each
Security redeemed, that payment will be made upon presentation and surrender
of the applicable Securities, that all Coupons, if any, maturing subsequent
to the date fixed for redemption shall be void, that any interest accrued to
the Redemption Date will be paid as specified in said notice, that the
redemption is pursuant to the sinking fund, if such is the case, and that on
and after said Redemption Date any interest thereon or on the portions
thereof to be redeemed will cease to accrue. If less than all the Securities
of any series are to be redeemed, the notice of redemption shall specify the
registration and, if any, CUSIP numbers of the Securities of such series to
be redeemed, and, if only Bearer Securities of any series are to be redeemed,
and if such Bearer Securities may be exchanged for Registered Securities, the
last date on which exchanges of Bearer Securities for Registered Securities
not subject to redemption may be made. In case any Security of any series is
to be redeemed in part only, the notice of redemption shall state the portion
of the principal amount thereof to be redeemed and shall state that on and
after the Redemption Date, upon surrender of such Security and any Coupons
appertaining thereto, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof and with appropriate
Coupons will be issued, or, in the case of Registered Securities providing
appropriate space for such notation, at the option of the Holders, the
Trustee, in lieu of delivering a new Security or Securities as aforesaid, may
make a notation on such Security of the payment of the redeemed portion
thereof.
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Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1205. Deposit of Redemption Price. On or before the opening of
business on any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own paying Agent,
segregate and hold in trust as provided in Section 1103) an amount of money
in the relevant currency (or a sufficient number of currency units, as the
case may be) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 1206. Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on
the Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in
the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest and the Coupons for such interest appertaining
to any Bearer Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for redemption in
accordance with said notice, together with all Coupons, if any, appertaining
thereto maturing after the Redemption Date, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall
be payable only at an office or agency located outside the United States
(except otherwise provided in Section 1102) and, unless otherwise specified
as contemplated by Section 202 or Section 301, as the case may be, only upon
presentation and surrender of Coupons for such interest; provided further
that, unless otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 406.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant Coupons maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount equal to the
face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by Coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1102) and, unless otherwise specified as
contemplated by Section 202 or Section 301, as the case may be, only upon
presentation and surrender of those Coupons.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1207. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall
authenticate and make available for delivery to the Holder of such Security
without service charge, a new Security or Securities (with appropriate
Coupons) of the same series and Stated Maturity, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the
Security so surrendered or, in the case of Registered Securities providing
appropriate space for such notation, at the option of the Holder, the
Trustee, in lieu of delivering a new Security or Securities as aforesaid, may
make a notation on such Security of the payment of the redeemed portion
thereof.
ARTICLE THIRTEEN
Sinking Funds
SECTION 1301. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series, except as otherwise specified as contemplated by Section 202 or
Section 301, as the case may be, for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1302. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities. The
Company (1) may deliver Outstanding Securities (including all unmatured
Coupons appertaining thereto) of a series (other than any previously called
for redemption) and (2) may apply as a credit Securities of a series which
have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that
such Securities have not been previously so credited. Such Securities shall
be received and the outstanding principal amount thereof credited for such
purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 1303. Redemption of Securities for Sinking Fund. Not less than 60
days prior to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing sinking fund payment for that series pursuant
to the terms of that series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1302 and will also deliver to the Trustee any Securities (including
all unmatured Coupons appertaining thereto) to be so delivered. Not less than
30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1203 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner
provided in Section 1204. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the manner stated in
Sections 1206 and 1207.
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<PAGE>
ARTICLE FOURTEEN
Meetings of Holders of Securities
SECTION 1401. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1401, to be held at such time and at such place
in the Borough of Manhattan, The City of New York, or in London, as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 20 nor more than
180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, by or pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting
of the Holders of Securities of such series for any purpose specified in
Section 1401, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 20 days after
receipt of such request or shall not thereafter proceed to cause the meeting
to be held as provided herein, then the Company or the Holders of Securities
of such series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The City of New
York, or in London, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1403. Persons Entitled To Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
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<PAGE>
SECTION 1404. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence
of a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 1402(a),
except that such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened.
Except as limited by the proviso to Section 1002, and subject to the
provisions described in the next succeeding paragraph, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is equal to or less than a majority,
in principal amount of the Outstanding Securities of a series may be adopted
at a meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
Coupons, whether or not present or represented at the meeting.
With respect to any consent, waiver or other action which this Indenture
expressly provides may be given by the Holders of a specified percentage of
Outstanding Securities of all series affected thereby (acting as one class),
only the principal amount of Outstanding Securities of any series represented
at a meeting or adjourned meeting duly reconvened at which a quorum is
present, held in accordance with this Section, and voting in favor of such
action, shall be counted for purposes of calculating the aggregate principal
amount of Outstanding Securities of all series affected thereby favoring such
action.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holder of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
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<PAGE>
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in principal
amount of the outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 (or the equivalent thereof) principal
amount of the Outstanding Securities of such series held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such series
or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1402 and, if applicable, Section 1404. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
__________________________
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<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
POLAROID CORPORATION,
by
-----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, as Trustee,
by
------------------------------------
Name:
Title:
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<PAGE>
COMMONWEALTH OF MASSACHUSETTS)
) ss.:
COUNTY OF MIDDLESEX )
On the ___ day of _________, 1996, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose
and say that he is a _______________ of POLAROID CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto
by like authority.
--------------------------------------------
Notary Public
Name:
Notary Public, Commonwealth of Massachusetts
No.:
Qualified in:
Commission Expires:
COMMONWEALTH OF MASSACHUSETTS)
) ss.:
COUNTY OF SUFFOLK )
On the ___ day of __________, 1996, before me personally came
____________________, to me known, who, being by me duly sworn, did depose
and say that he is a _______________ of STATE STREET BANK AND TRUST COMPANY,
a trust company described in and which executed the foregoing instrument;
that he knows the seal of said trust company; that the seal affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said trust company; and that he signed his name thereto by like
authority.
--------------------------------------------
Notary Public
Name:
Notary Public, Commonwealth of Massachusetts
No.:
Qualified in:
Commission Expires:
<PAGE>
Exhibit A.1
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a global Note and the following legend is
applicable: Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of CEDE &
CO., or such other name as requested by an authorized representative of The
Depository Trust Company, and any payment is made to CEDE & CO. or such other
entity, 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.
POLAROID CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Due 9 months or more from date of issue)
(Fixed Rate)
[Form of Face]
The following summary of terms is subject to the
information set forth on the reverse hereof:
REGISTERED NO. ORIGINAL ISSUE DATE:
OPTIONAL REDEMPTION: [ ] YES [ ] NO STATED MATURITY:
INITIAL REDEMPTION DATE: REDEMPTION PRICE, if applicable:
Initially __% of Principal
Amount and declining by __% of
the Principal Amount on each
anniversary of the Initial
Redemption Date until the
Redemption Price is 100% of the
Principal Amount.
PRINCIPAL AMOUNT: $
SPECIFIED CURRENCY:
AUTHORIZED DENOMINATIONS (If other than
$1,000 and any integral multiple thereof):
OPTION TO ELECT PAYMENTS IN U.S. DOLLARS:
[ ] YES [ ] NO CUSIP NO.__
FORM: [ ] BOOK ENTRY
[ ] CERTIFICATED
OPTION TO ELECT REPAYMENT:
[ ]YES [ ]NO
INTEREST RATE: OPTIONAL REPAYMENT DATES:
INTEREST PAYMENT DATE[S]: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATE[S]: OPTIONAL INTEREST RESET:
[ ]YES [ ]NO
U.S. DEPOSITARY: OPTIONAL EXTENSIONS OF MATURITY
[ ]YES [ ]NO
EXCHANGE RATE AGENT: EXTENSION PERIOD:
AMORTIZING NOTE: [ ]YES [ ]NO NUMBER OF EXTENSION PERIODS:
FINAL MATURITY DATE:
OTHER PROVISIONS: ANNEX ATTACHED [ ]YES [ ]NO
(and incorporated by
reference herein)
<PAGE>
POLAROID CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor corporation under the Indenture referred to on
the reverse hereof), for value received, hereby promises to pay to
or registered assigns the principal sum set forth above, at the office or
agency of the Company in the Borough of Manhattan, The City and State of New
York, on the Stated Maturity specified above, and to pay interest thereon
from and including the Original Issue Date shown above or from and including
the most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Date or Dates shown
above ("Interest Payment Dates"), commencing with the first such Interest
Payment Date next succeeding the Original Issue Date shown above (except as
provided below), at the rate per annum specified above, until the principal
hereof is paid or made available for payment and on the Stated Maturity, and
interest shall accrue on any overdue principal and on any overdue installment
of interest (to the extent that the payment of such interest shall be legally
enforceable) at the rate per annum set forth above. The interest so payable
and punctually paid or duly provided for on any Interest Payment Date will be
paid to the Person in whose name this Note (or one or more predecessor Notes)
is registered at the close of business on the Regular Record Date set forth
above next preceding such Interest Payment Date. The first payment of
interest on any Note originally issued between a Regular Record Date and the
related Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the Person in whose name
this Note is registered on such next succeeding Regular Record Date. Except
as otherwise provided in the Indenture, any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder
(as defined in such Indenture) on such Regular Record Date and may either be
paid to the Person in whose name this Note (or one or more predecessor Notes)
is registered at the close of business on a Special Record Date for the
payment of such defaulted interest to be fixed (after receipt of notice from
the Company of a proposed payment of defaulted interest) by the Trustee (as
hereinafter defined), notice whereof shall be given to Holders of Notes not
less than 10 days preceding such special record date or may be paid in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of interest may, at the option of the Company, be made by check
mailed to the registered address of the person entitled thereto.
Notwithstanding the foregoing, interest payable at maturity shall be payable
to the person to whom the principal is payable. Interest on the Notes will
be computed and paid on the basis of a 360-day year of twelve 30-day months.
If any Interest Payment Date or the Stated Maturity for this Note is a day
that is not a Business Day, all payments to be made on such day will be made
on the next succeeding Business Day with the same force and effect as if made
on the due date, and no additional interest shall be payable as a result of
such delayed payment.
Payments of interest to be paid in U.S. dollars (other than
interest, and if this is an Amortizing Note, principal (if this is not a
global Note) payable at the Stated Maturity) will be made by mailing a check
to the Holder at the address of the Holder appearing in the Security Register
as of the applicable Regular Record Date. Notwithstanding the foregoing, at
the option of the Company, all payments of interest and, if this is an
Amortizing Note, principal on this Note may be made by wire transfer of
immediately available funds to an account maintained by such Holder with a
bank located in the United States as designated by the Holder not less than
15 calendar days prior to the Interest Payment Date. If a Holder holds U.S.
$10,000,000 or more in aggregate principal amount of Notes of like tenor and
terms (including the same Interest Payment Dates) (or is the Holder of the
equivalent thereof in a Specified Currency other than U.S. dollars), such
Holder shall be entitled to receive payments of interest (other than at the
Stated Maturity or upon earlier redemption or repayment) in U.S. dollars by
wire transfer of immediately available funds, but only if appropriate payment
instructions have been received in writing by the Trustee not less than 15
calendar days prior to the applicable Interest Payment Date.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment
or governmental charge imposed upon the Holder of this Note. In the event
that payment is so made in accordance with the instructions of the Holder,
such wire transfer shall be deemed to constitute full and complete payment of
such interest and principal on this Note. If this is not a global Note,
payment of the principal, premium, if any, and interest payable at Maturity
in respect of this Note will be paid in immediately available funds upon
surrender of this Note accompanied by wire instructions at the principal
office of the Trustee, provided that this Note is presented in time for the
Trustee to make such payments in such funds in accordance with its normal
procedures.
If this Note is a Book-Entry Note as specified above, while this
Note is represented by one or more Book-Entry Notes registered in the name of
the U.S. Depositary or its nominee, the Company will cause payments of
principal of, premium, if any, and interest on such Book-Entry Notes to be
made to the U.S. Depositary or its nominee, as the case may be, by wire
transfer to the extent, in the funds and in the manner required by agreements
with, or regulations or procedures prescribed from time to time by, the U.S.
Depositary or its nominee, and otherwise in accordance with such agreements,
regulations and procedures.
If the Holder of this Note (as indicated above) is the U.S.
Depositary or a nominee of the U.S. Depositary, this Note is a global Note
and the following legend is applicable except as specified on the reverse
hereof: UNLESS AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE
REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE U.S. DEPOSITARY TO A NOMINEE OF THE U.S. DEPOSITARY OR BY A NOMINEE OF
THE U.S. DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE U.S.
DEPOSITARY OR BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S.
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR U.S. DEPOSITARY.
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
Dated: POLAROID CORPORATION
By:______________________________
Name:
Title:
By:________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities
of the Series designated herein
issued under the within-mentioned
indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:_______________________________
Authorized Signatory
<PAGE>
[Form of Reverse]
POLAROID CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
SECTION 1. General. This Note is one of a duly authorized issue
of notes of the Company (herein called the "Notes"), constituting part of the
series of Securities (as defined in the Indenture hereinafter referred to)
designated on the face hereof (Securities of such series being herein called
the "Securities of this series"), all issued or to be issued under an
indenture dated as of November __, 1996 (the "Indenture"), duly executed and
delivered by the Company to State Street Bank and Trust Company, as trustee
(the "Trustee"), to which Indenture reference is hereby made for a
description of the respective rights and duties thereunder of the Trustee,
the Company and the Holders of the Securities. The Securities of this series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest at different rates, may be subject to different
redemption provisions, may be subject to different sinking, purchase or
analogous funds and may otherwise vary as in the Indenture provided.
SECTION 2. Events of Default. In case an Event of Default (as
defined in the Indenture) with respect to the Securities of this series shall
have occurred and be continuing, the principal hereof together with accrued
interest thereon, if any, may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
SECTION 3. Supplemental Indentures. The Indenture contains
provisions permitting the Company and the Trustee, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding of all series to be affected (acting as
one class) to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture
or modifying in any manner the rights of the Holders of the Securities or
such series; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each outstanding Security affected
thereby, among other things, (i) change the fixed maturity of the principal
of, or any installment of principal of or interest on, any Security;
(ii) reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof; (iii) impair the right to
institute suit for the enforcement of any such payment on or after the fixed
maturity thereof (or, in the case of redemption, on or after the redemption
date); (iv) reduce the percentage in principal amount of the outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of the Indenture or certain
defaults thereunder and their consequences) provided for in the Indenture;
(v) change any obligation of the Company, with respect to outstanding
Securities of a series, to maintain an office or agency in the places and for
the purposes specified in the Indenture for such series; or (vi) modify any
of the foregoing provisions or the provisions for the waiver of certain
covenants and defaults, except to increase any applicable percentage of the
aggregate principal amount of outstanding Securities the consent of the
Holders of which is required or to provide with respect to any particular
series the right to condition the effectiveness of any supplemental indenture
as to that series on the consent of the Holders of a specified percentage of
the aggregate principal amount of outstanding Securities of such series or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security
affected thereby. It is also provided in the Indenture that the Holders of a
majority in aggregate principal amount of the Securities of a series at the
time outstanding may on behalf of the Holders of all the Securities of such
series waive any past default under the Indenture with respect to such series
and its consequences, except a default in the payment of the principal of,
premium, if any, or interest, if any, on any Security of such series or in
respect of a covenant or provision which cannot be modified without the
consent of the Holder of each outstanding Security of the series affected.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Note
and any Notes which may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this Note or
such other Notes.
SECTION 4. Obligation of the Company Absolute. 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, premium, if any, and interest on this
Note at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
SECTION 5. Discharge of Obligations. The Indenture permits the
Company to discharge its obligations with respect to the Notes on the 91st
day following the satisfaction of the conditions set forth in the Indenture,
which include the deposit with the Trustee of money or U.S. Government
Obligations or a combination thereof sufficient to pay and discharge each
installment of principal of (including premium, if any, on) and interest, if
any, on the outstanding Notes.
SECTION 6. Consolidation or Merger of the Company. If the Company
shall, in accordance with Section 901 of the Indenture, consolidate with or
merge into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, the successor shall
succeed to, and be substituted for, the Person named as the "Company" on the
face of this Note, all on the terms set forth in the Indenture.
SECTION 7. Authorized Denominations. The Notes are issuable in
registered form without coupons in denominations of $1,000 or any integral
multiple thereof. In the manner and subject to the limitations provided in
the Indenture, but without the payment of any service charge, Notes may be
exchanged for an equal aggregate principal amount of Notes of other
authorized denominations at the office or agency of the Company maintained
for such purpose in the Borough of Manhattan, The City and State of New York.
SECTION 8. Redemption. If so specified on the face hereof, this
Note may be redeemed at the option of the Company as a whole or from time to
time in part, on or after the date designated as the Initial Redemption Date
on the face hereof, at the redemption price specified on the face hereof,
together with unpaid interest accrued on the principal amount hereof to be
redeemed to the date of redemption, but interest installments that are due on
or prior to the date of redemption will be payable to the Holder of this Note
of record at the close of business on the relevant Regular Record Date
referred to on the face hereof, all as provided in the Indenture. The
Company may exercise such option by causing the Trustee to mail a notice of
such redemption not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Indenture. In the event of redemption of this Note in part only, a new Note
or Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
<PAGE>
SECTION 9. Registration of Transfer. Upon due presentment for
registration of transfer of this Note at an office or agency of the Company
for such registration, a new Note or Notes of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
herefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith.
If this Note is a global Note (as specified on the face hereof),
this Note is exchangeable for certificated Notes only upon the terms and
conditions provided in the Indenture. Except as provided above, owners of
beneficial interests in this permanent global Note will not be entitled to
receive physical delivery of Notes in certificated registered form and will
not be considered the Holders thereof for any purpose under the Indenture.
SECTION 10. Owners. Prior to due presentment for registration of
transfer of this Note, the Company, the Trustee and any agent of the Company
or the Trustee may deem and treat the registered Holder hereof as the owner
of this Note (whether or not this Note shall be overdue) for the purpose of
receiving payment of the principal of, premium, if any, and interest on this
Note, as herein provided, and for all other purposes, and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary. All payments made to or upon the order of
such registered Holder shall, to the extent of the sum or sums paid,
effectually satisfy and discharge liability for moneys payable on this Note.
SECTION 11. Waiver and Release of Liability. No recourse for the
payment of the principal of, premium, if any, or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse
under or upon any obligation, covenant or agreement of the Company in the
Indenture or any indenture supplemental thereto or in any Note or because of
the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any successor corporation, whether by virtue of any
constitution, statute or role of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly waived and
released.
SECTION 12. Payments. Interest on this Note will be payable on
the Interest Payment Date or Interest Payment Dates as specified on the face
hereof and, in either case, at Stated Maturity or earlier redemption or
repayment.
Interest payments on each Interest Payment Date or date of Maturity
for this Note 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 or duly provided for, as the case may be, to but excluding such
Interest Payment Date or date of Maturity, as the case may be.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect of this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
The principal of and any premium and interest on this Note are
payable by the Company in the Specified Currency for this Note. If the
Specified Currency for this Note is other than U.S. dollars, the Company will
(unless otherwise specified on the face hereof) arrange to convert all
payments in respect of this Note into U.S. dollars in the manner described in
the following paragraph. If this Note has a Specified Currency other than
U.S. dollars, the Holder of this Note may (unless otherwise specified on the
face hereof) elect to receive all payments in respect of this Note in the
Specified Currency by delivery of a written notice to the Trustee for such
Note not later than fifteen calendar days prior to the applicable payment
date, except under the circumstances described below. Such election will
remain in effect until revoked by written notice to such Trustee received not
later than fifteen calendar days prior to the applicable payment date.
The amount of any U.S. dollar payment in respect of this Note will
be determined by the Exchange Rate Agent based on the highest firm bid
quotation expressed in U.S. dollars received by the Exchange Rate Agent at
approximately 11:00 a.m., New York City time, on the second Business Day
preceding the applicable payment date (or, if no such rate is quoted on such
date, the last date on which such rate was quoted), from three (or, if three
are not available, then two) recognized foreign exchange dealers in The City
of New York (one of which may be an Agent (as such term is used in the
Distribution Agreement dated as of November , 1996 relating to the Notes)
and another of which may be the Exchange Rate Agent) selected by the Exchange
Rate Agent, for the purchase by the quoting dealer, for settlement on such
payment date, of the aggregate amount of such Specified Currency payable on
such payment date in respect of all Notes denominated in such Specified
Currency. All currency exchange costs will be borne by the registered
Holders of such Notes by deductions from such payments.
Except as set forth below, if payment in respect of this 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 other
circumstances beyond the Company's control 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 in respect of this Note shall be made in U.S.
dollars; provided that the Company, at its option, may resume making payment
in such currency once such currency is again available or so used. The
amounts so payable on any date in such currency shall be converted into U.S.
dollars on the basis of the most recently available market exchange rate for
such currency or as otherwise indicated on the face hereof. Any payment in
respect of this Note made under such circumstances in U.S. dollars will not
constitute an Event of Default under the Indenture.
If payment in respect of this Note is required to be made in ECU
and ECU are no longer used in the European Monetary System, then all payments
in respect of this Note shall be made in U.S. dollars; provided that the
Company, at its option, may resume making payments in ECU once ECU are again
so used. The amount of each payment in U.S. dollars shall be computed on the
basis of the equivalent of ECU in U.S. dollars, determined as described
below, as of the second Business Day prior to the date on which such payment
is due.
<PAGE>
The equivalent of ECU in U.S. dollars as of any date shall be
determined by the Trustee for this Note on the following basis. The
component currencies of ECU for this purpose (the "Components") shall be the
currency amounts that were components of ECU as of the last date on which ECU
were used in the European Monetary System. The equivalent of 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 such Trustee or such Exchange Rate Agent, as the case may be,
on the basis of the most recently available Market Exchange Rates for such
Components or as otherwise indicated on the face hereof.
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 be 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 made by the Trustee or the
Exchange Rate Agent, as the case may be, shall be at its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
binding on Holders of this Note.
All percentages resulting from any calculations under this Note
will be rounded, if necessary, to the nearest one hundred thousandth of a
percentage point (with five one-millionths of a percentage point being
rounded upward) and all currency or currency unit or dollar amounts used in
or resulting from any such calculation in respect of this Note will be
rounded to the nearest one-hundredth of a unit (with five one-thousandths
being rounded upward) or nearest cent (with one-half cent being rounded
upward), as the case may be.
SECTION 13. Repayment. If so specified on the face hereof, this
Note will be repayable prior to Stated Maturity at the option of the Holder
on the Optional Repayment Dates shown on the face hereof at the Optional
Repayment Prices shown on the face hereof together with interest accrued and
unpaid thereon to the date of repayment. In order for this Note (if it is
repayable at the option of the Holder) to be repaid prior to Stated Maturity,
the Paying Agent must receive at least 30 but not more than 45 calendar days
prior to an Optional Repayment Date (i) this Note with the form below
entitled "Option to Elect Repayment" duly completed or (ii) a telegram,
telex, facsimile transmission, hand delivery or letter (first class, postage
prepaid) from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
in the United States of America setting forth the name of the Holder of this
Note, the principal amount of this Note, the principal amount of the Note to
be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note with the form below entitled "Option
to Elect Repayment" duly completed will be received by the Paying Agent not
later than five Business Days after the date of such telegram, telex,
facsimile transmission, hand delivery or letter (first class, postage
prepaid). If the procedure described in clause (ii) of the preceding
sentence is followed, this Note with such form duly completed must be
received by the Trustee by such fifth Business Day. Exercise of the
repayment option by the Holder of this Note shall be irrevocable, except that
a Holder who has tendered this Note for repayment may revoke any such tender
for repayment by written notice to the Trustee received prior to the close of
business on the tenth calendar day prior to the repayment date. The
repayment option may be exercised by the Holder of this Note for less than
the entire principal amount of this Note provided that the principal amount
of this Note remaining outstanding after such repayment is an authorized
denomination. Upon such partial repayment, this Note shall be cancelled and
a new Note or Notes for the remaining principal amount hereof shall be issued
in the name of the Holder of this Note.
SECTION 14. Optional Interest Reset. If so specified on the face
hereof, the interest rate on this Note may be reset by the Company on the
date or dates specified on the face hereof (each an "Optional Interest Reset
Date"). The Company may exercise such option by notifying the Trustee of
such exercise at least 45 but not more than 60 calendar days prior to an
Optional Interest Reset Date. If the Company so notifies the Trustee of such
exercise, the Trustee will send, not later than 40 calendar days prior to
each Optional Interest Reset Date, by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) to the
Holder of this Note a notice (the "Reset Notice") indicating (i) that the
Company has elected to reset the interest rate, (ii) such new interest rate
and (iii) the provisions, if any, for redemption during the period from such
Optional Interest Reset Date to the next Optional Interest Reset Date or, if
there is no such next Optional Interest Reset Date, to the Stated Maturity of
this Note (each such period a "Subsequent Interest Period"), including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during such Subsequent Interest
Period.
Notwithstanding the foregoing, not later than 20 calendar days
prior to an Optional Interest Reset Date, the Company may, at its option,
revoke the interest rate provided for in the Reset Notice and establish a
higher interest rate for the Subsequent Interest Period commencing on such
Optional Interest Reset Date by causing the Trustee to send by telegram,
telex, facsimile transmission, hand delivery or letter (first class, postage
prepaid) notice of such higher interest rate to the Holder of this Note.
Such notice shall be irrevocable. All Notes with respect to which the
interest rate is reset on an Optional Interest Reset Date will bear such
higher interest rate, whether or not tendered for repayment as provided in
the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to
reset the interest rate of this Note, the Holder of this Note will have the
option to elect repayment of this Note by the Company on such Optional
Interest Reset Date at a price equal to the principal amount hereof plus
interest accrued and unpaid thereon to such Optional Interest Reset Date. In
order to obtain repayment on an Optional Interest Reset Date, the Holder must
follow the procedures set forth under Section 13 for optional repayment
except that the period for delivery or notification to the Trustee shall be
at least 25 but not more than 35 calendar days prior to such Optional
Interest Reset Date. If the Holder has tendered this Note for repayment
following receipt of a Reset Notice, the Holder may revoke such tender for
repayment by written notice to the Trustee received prior to 5:00 P.M., New
York City time, on the tenth calendar day prior to such Optional Interest
Reset Date.
SECTION 15. Optional Extension of Maturity. If so specified on
the face hereof, the Stated Maturity of this Note may be extended at the
option of the Company for the period or periods of from one to five whole
years specified on the face hereof (each an "Extension Period") up to but not
beyond the date (the "Final Maturity Date") set forth on the face hereof.
The Company may exercise such option with respect to this Note by notifying
the Trustee of such exercise at least 45 but not more than 60 calendar days
prior to the Stated Maturity of this Note in effect prior to the exercise of
such option (the "Original Stated Maturity Date"). If the Company so
notifies the Trustee of such exercise, the Trustee will send, not later than
40 calendar days prior to the Original Stated Maturity Date, by telegram,
telex, facsimile transmission, hand delivery or letter (first class, postage
prepaid) to the Holder of this Note, a notice (the "Extension Notice")
indicating (i) that the Company has elected to extend the Stated Maturity of
this Note, (ii) the new Stated Maturity, (iii) the interest rate applicable
to the Extension Period and (iv) the provisions, if any, for redemption
during such Extension Period, including the date or dates on which or the
period or periods during which and the price or prices at which such
redemption may occur during such Extension Period. Upon the Trustee's
sending of the Extension Notice, the Stated Maturity of this Note shall be
extended automatically and, except as modified by the Extension Notice and as
described in the next two paragraphs, this Note will have the same terms as
prior to the sending of such Extension Notice.
<PAGE>
Notwithstanding the foregoing, not later than 20 calendar days
prior to the Original Stated Maturity Date of this Note, the Company may, at
its option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the
Trustee to send by telegram, telex, facsimile transmission, hand delivery or
letter (first class, postage prepaid) notice of such higher interest rate to
the Holder of this Note. Such notice shall be irrevocable. All Notes with
respect to which the Stated Maturity is extended will bear such higher
interest rate for the Extension Period, whether or not tendered for repayment
as provided in the next paragraph.
If the Company elects to extend the Stated Maturity of this Note,
the Holder will have the option to elect repayment of this Note by the
Company on the Original Stated Maturity Date at a price equal to the
principal amount hereof, plus interest accrued and unpaid thereon to such
date. In order to obtain repayment on the Original Stated Maturity Date, the
Holder must follow the procedures set forth under Section 13 for optional
repayment, except that the period for delivery or notification to the Trustee
shall be at least 25 but not more than 35 calendar days prior to the Original
Stated Maturity Date. A Holder who has tendered this Note for repayment
following receipt of an Extension Notice may revoke such tender for repayment
by written notice to the Trustee received prior to 5:00 P.M., New York City
time, on the tenth calendar day prior to the Original Stated Maturity Date.
SECTION 16. Sinking Fund. This Note will not be subject to any
sinking fund.
SECTION 17. Original Issue Discount Notes. Notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount payable in the event the principal amount hereof is declared
to be due and payable immediately by reason of an Event of Default or in the
event of redemption or repayment prior to the Stated Maturity hereof in lieu
of the principal amount due at the Stated Maturity hereof shall be the
Amortized Face Amount of this Note as of the date of declaration, redemption
or repayment, as the case may be. The "Amortized Face Amount" of this Note
shall be the amount equal to (a) the principal amount of this Note multiplied
by the Issue Price (as set forth on the face hereof) plus (b) that portion of
the difference between the dollar amount determined pursuant to the preceding
clause (a) and the principal amount hereof that has accreted at the Yield to
Maturity (as set forth on the face hereof) (computed in accordance with
generally accepted United States bond yield computation principles) to such
date of declaration, redemption or payment, but in no event shall the
Amortized Face Amount of this Note exceed its principal amount.
SECTION 18. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 19. Defined Terms. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
shall be deemed to include the Notes. "Business Day" means any Monday,
Tuesday, Wednesday, Thursday or Friday that in The City of New York is not a
day on which banking institutions are authorized or required by law,
regulation or executive order to close; provided that with respect to a
Specified Currency, such day is also not a day on which banking institutions
are authorized or required by law, regulation or executive order to close in
the principal financial center of the country of such Specified Currency (or
in the case of ECUs, is not a day designated as an ECU Non-Settlement Day by
the ECU Banking Association in Paris or otherwise generally regarded in the
ECU interbank market as a day on which payments on ECUs shall not be made).
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to
have the Company repay the principal amount of this Note or portion hereof
below designated at (i) the applicable Optional Repayment Price indicated on
the face hereof, together with interest accrued and unpaid thereon to the
date of repayment, if this Note is to be repaid pursuant to Section 13 of
this Note, or (ii) 100% of the principal amount of this Note to be repaid
plus interest accrued and unpaid thereon to the Optional Interest Reset Date,
if this Note is to be repaid pursuant to Section 14 hereof, or to the
Original Stated Maturity Date, if this Note is to be repaid pursuant to
Section 15 hereof. Specify the denomination or denominations (which shall be
$1,000 or an integral multiple thereof in excess thereof or, if the Note is
denominated in a currency other than U.S. dollars, an Authorized
Denomination) of the Note or Notes to be issued to the Holder for the portion
of the within Note not being repaid (in the absence of any specification, one
such Note will be issued for the portion not being repaid):
_______________________________ ___________________________
Dated:_________________________ Signature
Sign exactly as name appears
on the front of this Note.
Principal amount to be repaid if Indicate address where check
amount to be repaid is less than is to be sent, if repaid:
the entire principal amount of
this Note (principal amount ____________________________
remaining must be an authorized ____________________________
denomination)
$______________________________
(which shall be an integral
multiple of $1,000 or, if the
Note is denominated in a currency
other than U.S. dollars, of an
amount equal to the integral
multiples referred to on the face SOCIAL SECURITY OR OTHER TAXPAYER
hereof under "Authorized ID NUMBER
Denominations" (or, if no such _____________________________
reference is made,
an amount equal to the minimum
Authorized Denomination)).
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as through 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 TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
__________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably
constituting and appointing _______________ attorney to transfer
said Note on the books of the Company, with full power of
substitution in the premises.
Dated:________________ _________________________
Signature
Sign exactly as name appears
on the front of this Note
(SIGNATURE MUST BE GUARANTEED
by a commercial bank, a trust
company or by a member of the
New York Stock Exchange which
is a member of an approved
signature guarantee medallion
program pursuant to Securities
and Exchange Commission Rule
17Ad-15.)
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT 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.
<PAGE>
Exhibit A.2
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a global Note and the following legend is
applicable: Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York,
New York) to the issuer or its agent for registration of transfer, exchange
or payment, and any certificate issued is registered in the name of CEDE &
CO., or such other name as requested by an authorized representative of The
Depository Trust Company, and any payment is made to CEDE & CO. or such other
entity, 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.
POLAROID CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Due 9 months or more from date of issue)
(Floating Rate)
[Form of Face]
The following summary of terms is subject to the
information set forth on the reverse hereof:
REGISTERED NO. ORIGINAL ISSUE DATE:
OPTIONAL REDEMPTION: [ ]YES [ ]NO STATED MATURITY:
INITIAL REDEMPTION DATE: REDEMPTION PRICE, if applicable:
Initially __% of Principal Amount
and declining by __% of the
Principal Amount on each
anniversary of the Initial
Redemption Date until the
Redemption Price is 100% of
the Principal Amount.
PRINCIPAL AMOUNT:
SPECIFIED CURRENCY:
AUTHORIZED DENOMINATIONS (If
other than $1,000 and any
integral multiple thereof):
OPTION TO ELECT PAYMENTS IN
U.S. DOLLARS: [ ]YES [ ]NO CUSIP NO.
FORM: [ ] BOOK ENTRY
[ ] CERTIFICATED OPTION TO ELECT
REPAYMENT: [ ]YES [ ]NO
INTEREST RATE BASIS: OPTIONAL REPAYMENT DATES:
INDEX MATURITY: OPTIONAL REPAYMENT PRICES:
REGULAR RECORD DATES: OPTIONAL INTEREST RESET:
[ ]YES [ ]NO
INITIAL INTEREST RATE: OPTIONAL INTEREST RESET DATES:
MAXIMUM INTEREST RATE: OPTIONAL EXTENSIONS OF
MATURITY [ ]YES [ ]NO
MINIMUM INTEREST RATE:
SPREAD: EXTENSION PERIOD:
SPREAD MULTIPLIER: NUMBER OF EXTENSION PERIODS:
RESET PERIOD: FINAL MATURITY DATE:
INTEREST RESET DATES: INDEXED NOTE
(See attached Annex): [ ]YES [ ]NO
OTHER PROVISIONS:
ANNEX ATTACHED [ ]YES [ ]NO
(and incorporated herein
by reference)
INTEREST DETERMINATION DATES:
INTEREST PAYMENT DATES:
CALCULATION AGENT:
EXCHANGE RATE AGENT:
AMORTIZING NOTE: [ ]YES [ ]NO
U.S. DEPOSITARY:
<PAGE>
POLAROID CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
or registered assigns the principal sum set forth above, at the office or
agency of the Company in Borough of Manhattan, The City and State of
New York, on the Stated Maturity specified above, and to pay interest thereon
from and including the Original Issue Date shown above or from and including
the most recent Interest Payment Date (as hereinafter defined) to which
interest has been paid or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Date or Dates shown
above ("Interest Payment Dates"), at the rate per annum determined in
accordance with the provisions on the reverse hereof, commencing with the
first such Interest Payment Date next succeeding the Original Issue Date
shown above (except as provided below) until the principal hereof is paid or
made available for payment and on the Stated Maturity, and interest shall
accrue on any overdue principal and on any overdue installment of interest
(to the extent that the payment of such interest shall be legally
enforceable) at the rate per annum in effect from time to time with respect
to this Note. The interest so payable and punctually paid or duly provided
for on any Interest Payment Date will be paid to the Person in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date set forth above next preceding such
Interest Payment Date. The first payment of interest on any Note originally
issued between a Regular Record Date and the related Interest Payment Date
will be made on the Interest Payment Date following the next succeeding
Regular Record Date to the Person in whose name this Note is registered on
such next succeeding Regular Record Date. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder (as defined in such
Indenture) on such Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more predecessor Notes) is registered at
the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed (after receipt of notice from the Company of a
proposed payment of defaulted interest) by the Trustee (as hereinafter
defined), notice whereof shall be given to Holders of Notes not less than 10
calendar days prior to such Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said
Indenture. Payment of interest may, at the option of the Company, be made by
check mailed to the registered address of the person entitled thereto.
Notwithstanding the foregoing, interest payable at maturity shall be payable
to the person to whom the principal is payable.
Payments of interest to be paid in U.S. dollars (other than
interest, and if this is an Amortizing Note, principal (if this is not a
global Note) payable at the Stated Maturity) will be made by mailing a check
to the Holder at the address of the Holder appearing in the Security Register
as of the applicable Regular Record Date. Notwithstanding the foregoing, at
the option of the Company, all payments of interest and, if this is an
Amortizing Note, principal on this Note may be made by wire transfer of
immediately available funds to an account maintained by such Holder with a
bank located in the United States as designated by the Holder not less than
15 calendar days prior to the Interest Payment Date. If a Holder holds U.S.
$10,000,000 or more in aggregate principal amount of Notes of like tenor and
terms (including the same Interest Payment Dates) (or is the Holder of the
equivalent thereof in a Specified Currency other than U.S. dollars), such
Holder shall be entitled to receive payments of interest (other than at the
Stated Maturity or upon earlier redemption or repayment) in U.S. dollars by
wire transfer of immediately available funds, but only if appropriate payment
instructions have been received in writing by the Trustee not less than 15
calendar days prior to the applicable Interest Payment Date.
The Company will pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but not any tax, assessment
or governmental charge imposed upon the Holder of this Note. In the event
that payment is so made in accordance with the instructions of the Holder,
such wire transfer shall be deemed to constitute full and complete payment of
such interest and principal on this Note. If this is not a global Note,
payment of the principal, premium, if any, and interest payable at Maturity
in respect of this Note will be paid in immediately available funds upon
surrender of this Note accompanied by wire instructions at the principal
office of the Trustee, provided that this Note is presented in time for the
Trustee to make such payments in such funds in accordance with its normal
procedures.
If this Note is a Book-Entry Note as specified above, while this
Note is represented by one or more Book-Entry Notes registered in the name of
the U.S. Depositary or its nominee, the Company will cause payments of
principal of, premium, if any, and interest on such Book-Entry Notes to be
made to the U.S. Depositary or its nominee, as the case may be, by wire
transfer to the extent, in the funds and in the manner required by agreements
with, or regulations or procedures prescribed from time to time by, the U.S.
Depositary or its nominee, and otherwise in accordance with such agreements,
regulations and procedures.
If the Holder of this Note (as indicated above) is the U.S.
Depositary or a nominee of the U.S. Depositary, this Note is a global Note
and the following legend is applicable except as specified on the reverse
hereof: UNLESS AND UNTIL IT IS EXCHANGED FOR SECURITIES IN DEFINITIVE
REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE U.S. DEPOSITARY TO A NOMINEE OF THE U.S. DEPOSITARY OR BY A NOMINEE OF
THE U.S. DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE U.S.
DEPOSITARY OR BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR U.S.
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR U.S. DEPOSITARY.
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: POLAROID CORPORATION
By:__________________________
Name:
Title:
By:___________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities
of the Series designated herein
issued under the within-mentioned
indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:____________________________
Authorized Signatory
<PAGE>
[Form of Reverse]
POLAROID CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
SECTION 1. General. This Note is one of a duly authorized issue
of notes of the Company (herein called the "Notes"), constituting part of the
series of Securities (as defined in the Indenture hereinafter referred to)
designated on the face hereof (Securities of such series being herein called
the "Securities of this series"), all issued or to be issued under an
indenture dated as of November , 1996 (the "Indenture"), duly executed and
delivered by the Company to State Street Bank and Trust Company, as trustee
(the "Trustee"), to which Indenture reference is hereby made for a
description of the respective rights and duties thereunder of the Trustee,
the Company and the Holders of the Securities. The Securities of this series
may be issued in various aggregate principal amounts, may mature at different
times, may bear interest at different rates, may be subject to different
redemption provisions, may be subject to different sinking, purchase or
analogous funds and may otherwise vary as in the Indenture provided.
SECTION 2. Interest Rate Calculations; Payments. The interest
rate on this Note will be equal to either (i) the interest rate calculated by
reference to the specified Interest Rate Basis plus or minus the Spread, if
any, or (ii) the interest rate calculated by reference to the specified
Interest Rate Basis multiplied by the Spread Multiplier, if any. The
"Spread" is the number of basis points (one basis point equals one-hundredth
of a percentage point) specified on the face hereof as being applicable to
this Note, and the "Spread Multiplier" is the percentage specified on the
face hereof as being applicable to this Note. Set forth on the face hereof
are the Interest Rate Basis and the Spread or Spread Multiplier, if any, and
the maximum or minimum interest rate limitation, if any, applicable to this
Note. Set forth on the face hereof are particulars as to the Calculation
Agent (unless specified otherwise, State Street Bank and Trust Company (in
such capacity, the "Calculation Agent")), Index Maturity, Original Issue
Date, interest rate in effect for the period from the Original Issue Date to
the first Interest Reset Date set forth on the face hereof (the "Initial
Interest Rate"), Interest Determination Dates, Interest Payment Dates,
Regular Record Dates and Interest Reset Dates with respect to this Note.
Except as provided below, interest on this Note will be payable (i)
if this Note resets daily, weekly or monthly, on the third Wednesday of each
month or on the third Wednesday of March, June, September and December of
each year, as specified on the face hereof; (ii) if this Note resets
quarterly, on the third Wednesday of March, June, September and December of
each year; (iii) if this Note resets semi-annually, on the third Wednesday of
each of two months of each year specified on the face hereof; and (iv) if
this Note resets annually, on the third Wednesday of one month of each year
specified on the face hereof (each such day being an "Interest Payment
Date"), and in each case at Maturity. If any Interest Payment Date, other
than Maturity, for this Note would otherwise be a day that is not a Business
Day, such Interest Payment Date shall be postponed to the next day that is a
Business Day, except that if this Note is a LIBOR Note, if such Business Day
is in the next succeeding calendar month, such Interest Payment Date shall be
the immediately preceding Business Day. If the Maturity for this Note falls
on a day that is not a Business Day, payment of principal, premium, if any,
and interest with respect to this Note will be made on the next succeeding
Business Day with the same force and effect as if made on the due date, and
no additional interest shall be payable as a result of such delayed payment.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semi-annually or annually (such period being the "Reset
Period" for such Note, and the first day of each Reset Period being an
"Interest Reset Date"), as specified on the face hereof. The Interest Reset
Dates will be, if this Note resets daily, each Business Day; if this Note
resets weekly (unless the Interest Rate Basis on the face hereof is the
Treasury Rate), the Wednesday of each week; if this Note resets weekly and
the Interest Rate Basis on the face hereof is the Treasury Rate, the Tuesday
of each week, except as provided in the next succeeding paragraph; if this
Note resets monthly (unless the Interest Rate Basis on the face hereof is the
11th District Cost of Funds Rate), the third Wednesday of each month; if this
Note resets monthly and the Interest Rate Basis on the face hereof is the
11th District Cost of Funds Rate, the first calendar day of the month; if
this Note resets quarterly, the third Wednesday of each March, June,
September and December; if this Note resets semi-annually, the third
Wednesday of the two months of each year specified on the face hereof; and if
this Note resets annually, the third Wednesday of one month of each year
specified on the face hereof. If the Interest Reset Date would otherwise be
a day that is not a Business Day, the Interest Reset Date shall be postponed
to the next day that is a Business Day, except that if the Interest Rate
Basis on the face hereof is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day. 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 (b) 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, subject in either case to any maximum or minimum interest rate
limitation referred to on the face hereof and to any adjustment by a Spread
or a Spread Multiplier referred to on the face hereof; provided, however,
that the interest rate in effect for the period from and including the
Original Issue Date to but excluding the first Interest Reset Date shall be
the Initial Interest Rate specified on the face hereof.
The interest rate for each Reset Period will be the rate determined
by the Calculation Agent on the Calculation Date (as defined below)
pertaining to the Interest Determination Date pertaining to the Interest
Reset Date for such Reset Period. Unless otherwise specified on the face
hereof, the "Interest Determination Date" pertaining to an Interest Reset
Date for (a) a Commercial Paper Rate Note (the "Commercial Paper Interest
Determination Date"), (b) a Federal Funds Rate Note (the "Federal Funds
Interest Determination Date"), (c) a CD Rate Note (the "CD Interest
Determination Date'), (d) a Prime Rate Note (the "Prime Interest
Determination Date"), (e) a CMT Rate Note (the "CMT Interest Determination
Date"), or (f) a Kenny Rate Note (the "Kenny Rate Interest Determination
Date") will be the second Business Day prior to such Interest Reset Date.
Unless otherwise specified on the face hereof, the Interest Determination
Date pertaining to an Interest Reset Date for an 11th District Cost of Funds
Rate Note (the "11th District Interest Determination Date") will be the last
Business Day of the month immediately preceding such Interest Reset Date on
which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below). Unless otherwise
specified on the face hereof, the Interest Determination Date pertaining to
an Interest Reset Date for a LIBOR Note (the "LIBOR Interest Determination
Date") will be the second London Business Day immediately preceding such
Interest Reset Date. Unless otherwise specified on the face hereof, the
Interest Determination Date pertaining to an Interest Reset Date for a
Treasury Rate Note (the "Treasury Interest Determination Date") will be the
day of the week in which such Interest Reset Date falls on which Treasury
bills would normally be auctioned. Treasury bills are usually sold at
auction on Monday of each week, unless that day is a legal holiday, in which
case the auction is usually held on the following Tuesday, except that such
auction may be held on the preceding Friday. If, as a result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be
the Treasury Interest Determination Date pertaining to the Reset Period
commencing in the next succeeding week. If an auction date shall fall on any
Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date
shall instead be the first Business Day immediately following such auction
date. Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to any Interest Determination Date shall be the earlier of (i) the
tenth calendar day after the Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day, or (ii) the Business
Day preceding the applicable Interest Payment Date or Maturity, as the case
may be.
<PAGE>
As used herein, "Business Day" means, unless otherwise specified on
the face hereof, any Monday, Tuesday, Wednesday, Thursday or Friday that in
The City of New York is not a day on which banking institutions are
authorized or required by law, regulation or executive order to close and, if
the Interest Rate Basis of this Note is LIBOR, is also a London Business Day;
provided that with respect to a Specified Currency, such day is also not a
day on which banking institutions are authorized or required by law,
regulation or executive order to close in the principal financial center of
the country of such Specified Currency (or in the case of ECUs, is not a day
designated as an ECU Non-Settlement Day by the ECU Banking Association in
Paris or otherwise generally regarded in the ECU interbank market as a day on
which payments on ECUs shall not be made). As used herein, "London Business
Day" means any day (a) if the Designated LIBOR Currency is other than the
ECU, on which dealings in deposits in such Designated LIBOR Currency are
transacted in the London interbank market or (b) if the Designated LIBOR
Currency is the ECU, that is not designated as an ECU Non-Settlement Day by
the ECU Banking Association in Paris or otherwise generally regarded in the
ECU interbank market as a day on which payments on ECUs shall not be made.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on the
face hereof.
Unless otherwise specified on the face hereof, if this Note is an
Amortizing Note, payments with respect to this Note will be applied first to
interest due and payable hereon and then to the reduction of the unpaid
principal amount hereof. If this Note is an Amortizing Note, a table setting
forth repayment information in respect of this Note will be provided to the
original purchaser hereof and will be available, upon request, to subsequent
Holders.
Unless otherwise indicated on the face hereof, interest on this
Note will accrue from and including the date of issue or from and including
the immediately preceding Interest Payment Date in respect of which interest
has been paid or duly provided for, as the case may be, to but excluding the
Interest Payment Date or the Maturity, as the case may be. Accrued interest
is calculated by multiplying the face amount of this Note by an accrued
interest factor. This accrued interest factor is computed by adding the
interest factors calculated for each day from and including the date of
issue, or from and including the last date to which interest has been paid or
duly provided for, to but excluding the date for which accrued interest is
being calculated. The interest factor for each such day (unless otherwise
specified) is computed by dividing the interest rate applicable to such day
by 360, in the case of Commercial Paper Rate Notes, CD Rate Notes, 11th
District Cost of Funds Rate Notes, Federal Funds Rate Notes, LIBOR Notes and
Prime Rate Notes, or by the actual number of days in the year, in the case of
Treasury Rate Notes or CMT Rate Notes, or by 365 days in the case of Kenny
Rate Notes.
The Calculation Agent shall calculate the interest rate on this
Note, as provided below. The Calculation Agent will, upon the request of the
Holder of this Note, provide the interest rate then in effect and, if then
determined, the interest rate which will become effective as a result of a
determination made with respect to the most recent Interest Determination
Date with respect to this Note. The Trustee shall act as the initial
Calculation Agent for the Notes. For purposes of calculating the rate of
interest payable on this Note, the Company will enter into an agreement with
the Calculation Agent. The Calculation Agent's determination of any interest
rate shall be final and binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided
below, the interest rate on this Note for any interest period shall not be
greater than the maximum interest rate, if any, or less than the minimum
interest rate, if any, specified on the face hereof. The interest rate on
this Note will in no event be higher than the maximum rate permitted by New
York or other applicable law, as the same may be modified by United States
law of general application.
Determination of Commercial Paper Rate. If the Interest Rate Basis specified
on the face hereof is Commercial Paper Rate, the interest rate determined
with respect the Commercial Paper Rate Interest Determination Date shall be
the Commercial Paper Rate plus or minus the Spread, if any, or multiplied by
the Spread Multiplier, if any, as specified on the face hereof, as determined
on such Commercial Paper Rate Interest Determination Date.
"Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the Index
Maturity designated on the face hereof as published by the Board of Governors
of the Federal Reserve System in "Statistical Release H.15(519), Selected
Interest Rates" or any successor publication of the Board of Governors
("H.15(519)") under the heading "Commercial Paper." In the event that such
rate is not published prior to 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Commercial Paper Interest Determination
Date, then the Commercial Paper Rate with respect to such Commercial Paper
Interest Determination Date shall be the Money Market Yield of the rate on
such Commercial Paper Interest Determination Date for commercial paper having
the Index Maturity designated on the face hereof as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30
P.M. Quotations for U.S. Government Securities" or any successor publication
("Composite Quotations") under the heading "Commercial Paper." If by 3:00
P.M., New York City time, on such Calculation Date such rate is not yet
published in either H.15(519) or Composite Quotations, then the Commercial
Paper Rate for such Commercial Paper Interest Determination Date shall be
calculated by the Calculation Agent and shall be the Money Market Yield of
the arithmetic mean of the offered rates as of 11:00 A.M., New York City
time, on such Commercial Paper Interest Determination 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 designated
on the face hereof placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized securities rating agency;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date will be the Commercial Paper Rate in effect immediately
prior to such Commercial Paper Interest Determination Date.
<PAGE>
"Money Market Yield" shall be a yield (expressed as a percentage
rounded, if necessary, to the nearest one hundred-thousandth of a percent)
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 period for which accrued interest is being calculated.
Determination of CD Rate. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to the CD
Interest Determination Date shall be the CD Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, as specified on the face
hereof, as determined on such CD Interest Determination Date.
"CD Rate" means, with respect to any CD Interest Determination
Date, the rate on such date for negotiable certificates of deposit having the
Index Maturity designated on the face hereof as published in H.15(519) under
the heading "CDs (Secondary Market)." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such CD Interest Determination Date, then the CD Rate with
respect to such CD Interest Determination Date shall be the rate on such CD
Interest Determination Date for negotiable certificates of deposit having the
Index Maturity designated on the face hereof as published in Composite
Quotations under the heading "Certificates of Deposit." If by 3:00 P.M., New
York City time, on such Calculation Date such rate is not published in either
H.15(519) or Composite Quotations, then the CD Rate on such CD Interest
Determination Date shall be calculated by the Calculation Agent and shall be
the arithmetic mean of the secondary market offered rates as of 10:00 A.M.,
New York City time, on such CD Interest Determination Date of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The City
of New York selected by the Calculation Agent for negotiable certificates of
deposit of major United States money market banks (in the market for
negotiable certificates of deposit) with a remaining maturity closest to the
Index Maturity specified on the face hereof in a denomination of $5,000,000;
provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
with respect to such CD Interest Determination Date will be the CD Rate in
effect immediately prior to such CD Interest Determination Date.
Determination of CMT Rate. If the Interest Rate Basis specified on the face
hereof is CMT Rate, the interest rate determined with respect to the CMT
Interest Determination Date shall be the CMT Rate plus or minus the Spread,
if any, or multiplied by the Spread Multiplier, if any, as specified on the
face hereof, as determined on such CMT Interest Determination Date.
"CMT Rate" means, with respect to any CMT Interest Determination
Date, the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption ". . . Treasury Constant Maturities . . . Federal
Reserve Board Release H.15 . . . Mondays Approximately 3:45 P.M.," under the
column for the Designated CMT Maturity Index (as defined below) for (i) if
the Designated CMT Telerate Page is 7055, the rate on such CMT Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
week, or the month, as applicable, ended immediately preceding the week in
which the applicable CMT Interest Determination Date occurs. If such rate is
no longer displayed on the relevant page, or if not displayed by 3:00 P.M.,
New York City time, on the Calculation Date pertaining to such CMT Interest
Determination Date, then the CMT Rate for such CMT Interest Determination
Date will be such treasury constant maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no
longer published, or if not published by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such CMT Interest Determination Date, then
the CMT Rate for such CMT Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index (or other United
States Treasury rate for the Designated CMT Maturity Index) for the CMT
Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve
System or the United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in the relevant H.15(519). If
such information is not provided by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CMT Interest Determination Date, then the
CMT Rate for the CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately
3:30 P.M., New York City time, on the CMT Interest Determination Date
reported, according to their written records, by three leading primary United
States government securities dealers (each, a "Reference Dealer") in The City
of New York selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for the most
recently issued direct noncallable fixed rate obligations of the United
States ("Treasury Notes") with an original maturity of approximately the
Designated CMT Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year. If the Calculation
Agent cannot obtain three such Treasury Note quotations, the CMT Rate for
such CMT Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 P.M., New York
City time, on the CMT Interest Determination Date of three Reference Dealers
in The City of New York (from five such Reference Dealers selected by the
Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity
of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000. If three or four
(and not five) of such Reference Dealers are quoting as described above, then
the CMT Rate will be based on the arithmetic mean of the offer prices
obtained and neither the highest nor the lowest of such quotes will be
eliminated; provided, however, that if fewer than three Reference Dealers
selected by the Calculation Agent are quoting as described herein, the CMT
Rate will be the CMT Rate in effect on such CMT Interest Determination Date.
If two Treasury Notes with an original maturity as described in the third
preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified on the face hereof (or any other page
as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as published in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as published in H.15(519). If no
such page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
<PAGE>
"Designated CMT Maturity Index" means the original period to
maturity of the Treasury Notes (either one, two, three, five, seven, ten,
twenty or thirty years) specified on the face hereof with respect to which
the CMT Rate will be calculated. If no such maturity is specified on the
face hereof, the Designated CMT Maturity Index shall be two years.
Determination of Federal Funds Rate. If the Interest Rate Basis specified on
the face hereof is Federal Funds Rate, the interest rate determined with
respect to the Federal Funds Interest Determination Date shall be the Federal
Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof, as determined on such
Federal Funds Interest Determination Date.
"Federal Funds Rate" means, with respect to any Federal Funds
Interest Determination Date, the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)." In the
event that such rate is not published prior to 9:00 A.M., New York City time,
on the Calculation Date pertaining to such Federal Funds Interest
Determination Date, then the Federal Funds Rate with respect to such Federal
Funds Interest Determination Date shall be the rate on such Federal Funds
Interest Determination Date as published in Composite Quotations under the
heading "Federal Funds/Effective Rate." If by 3:00 P.M., New York City time,
on such Calculation Date such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate with respect to such
Federal Funds Interest Determination Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean (each as rounded, if
necessary, to the nearest one hundred-thousandth of a percent) of the rates
as of 9:00 A.M., New York City time, on such Federal Funds Interest
Determination Date for the last transaction in overnight Federal Funds
arranged by three leading brokers of Federal Funds transactions in The City
of New York selected by the Calculation Agent; provided, however, that if the
brokers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Federal Funds Rate with respect to such
Federal Funds Interest Determination Date will be the Federal Funds Rate in
effect immediately prior to such Federal Funds Interest Determination Date.
Determination of 11th District Cost of Funds Rate. If the Interest Rate
Basis specified on the face hereof is 11th District Cost of Funds Rate, the
interest rate determined with respect to the 11th District Interest
Determination Date shall be the 11th District Cost of Funds Rate plus or
minus the Spread, if any, or multiplied by the Spread Multiplier, if any,
specified on the face hereof, as determined on such 11th District Interest
Determination Date.
"11th District Cost of Funds Rate" means, with respect to any 11th
District Interest Determination Date, the rate equal to the monthly weighted
average cost of funds for the calendar month immediately preceding such 11th
District Interest Determination Date as set forth under the caption "11th
District" on Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such
11th District Interest Determination Date. If such rate does not appear on
Telerate Page 7058 on any related 11th District Interest Determination Date,
the 11th District Cost of Funds Rate for such 11th District Interest
Determination Date shall 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 (the "Index") by the FHLB of San Francisco as
such cost of funds for the calendar month immediately preceding the date of
such announcement. If the FHLB of San Francisco fails to announce such rate
for the calendar month immediately preceding such 11th District Interest
Determination Date, then the 11th District Cost of Funds Rate for such 11th
District Interest Determination Date will be the 11th District Cost of Funds
Rate then in effect on such 11th District Interest Determination Date.
Determination of Kenny Rate. If the Interest Rate Basis specified on the
face hereof is Kenny Rate, the interest rate determined with respect to the
Kenny Rate Interest Determination Date shall be the Kenny Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified
on the face hereof, as determined on such Kenny Rate Interest Determination
Date.
"Kenny Rate" means, with respect to any Kenny Rate Interest
Determination Date, the high grade weekly index (the "Weekly Index") on such
date made available by Kenny Information Systems ("Kenny") to the Calculation
Agent. The Weekly Index is, and shall be, based upon 30 day yield
evaluations at par of bonds, the interest on which is exempt from Federal
income taxation under the Internal Revenue Code of 1986, as amended, of not
less than five high grade component issuers selected by Kenny which shall
include, without limitation, issuers of general obligation bonds. The
specific issuers included among the component issuers may be changed from
time to time by Kenny in its discretion. The bonds on which the Weekly Index
is based shall not include any bonds on which the interest is subject to a
minimum tax or similar tax under the Internal Revenue Code of 1986, as
amended, unless all tax-exempt bonds are subject to such tax. In the event
Kenny ceases to make available such Weekly Index, a successor indexing agent
will be selected by the Calculation Agent, such index to reflect the
prevailing rate for bonds rated in the highest short-term rating category by
Moody's Investors Service, Inc. and Standard & Poor's Corporation in respect
of issuers most closely resembling the high grade component issuers selected
by Kenny for its Weekly Index, the interest on which is (A) variable on a
weekly basis, (B) exempt from Federal income taxation under the Internal
Revenue Code of 1986, as amended, and (C) not subject to a minimum tax or
similar tax under the Internal Revenue Code of 1986, as amended, unless all
tax-exempt bonds are subject to such tax. If such successor indexing agent
is not available, the rate for any Kenny Rate Interest Determination Date
shall be 67% of the rate determined if the Treasury Rate option had been
originally selected.
Determination of LIBOR. If the Interest Rate Basis specified on the face
hereof is LIBOR, the interest rate determined with respect to the LIBOR
Interest Determination Date shall be LIBOR plus or minus the Spread, if any,
or multiplied by the Spread Multiplier, if any, specified on the face hereof,
as determined on such LIBOR Interest Determination Date.
LIBOR will be determined by the Calculation Agent in accordance
with the following provisions:
(i) With respect to any LIBOR Interest Determination Date,
LIBOR will be either: (a) if "LIBOR Reuters" is specified on the
face hereof, the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page (as defined below) by its terms
provides only for a single rate, in which case such single rate
shall be used) for deposits in the Designated LIBOR Currency (as
defined below) having the Index Maturity designated on the face
hereof, commencing on the second London Business Day immediately
following the LIBOR Interest Determination Date, which appear on
the Designated LIBOR Page specified on the face hereof as of 11:00
A.M., London time, on that LIBOR Interest Determination Date, if at
least two such offered rates appear (unless, as aforesaid, only a
single rate is required) on such Designated LIBOR Page, or (b) if
"LIBOR Telerate" is specified on the face hereof, the rate for
deposits in the Designated LIBOR Currency (as defined below) having
the Index Maturity designated on the face hereof, commencing on the
second London Business Day immediately following such LIBOR
Interest Determination Date, which appears on the Designated LIBOR
Page specified on the face hereof as of 11:00 A.M. London time on
that LIBOR Interest Determination Date. Notwithstanding the
foregoing, if fewer than two offered rates appear on the Designated
LIBOR Page with respect to LIBOR Reuters (unless the specified
Designated LIBOR Page with respect to LIBOR Reuters by its terms
provides only for a single rate, in which case such single rate
shall be used), or if no rate appears on the Designated LIBOR Page
with respect to LIBOR Telerate, whichever may be applicable, LIBOR
in respect of the related LIBOR Interest Determination Date will be
determined as if the parties had specified the rate described in
clause (ii) below.
<PAGE>
(ii) With respect to any LIBOR Interest Determination Date on
which fewer than two offered rates appear on the Designated LIBOR
Page with respect to LIBOR Reuters (unless the Designated LIBOR
Page by its terms provides only for a single rate, in which case
such single rate shall be used), or if no rate appears on the
Designated LIBOR Page with respect to LIBOR Telerate, as the case
may be, the Calculation Agent will request the principal London
office of each of four major banks in the London interbank market
selected by the Calculation Agent to provide the Calculation Agent
with its offered rate quotation for deposits in the Designated
LIBOR Currency (as defined below) for the period of the Index
Maturity specified on the face hereof, commencing on the second
London Business Day immediately following such LIBOR Interest
Determination Date, to prime banks in the London interbank market
as of 11:00 A.M., London time, on such LIBOR Interest Determination
Date and in a principal amount that is representative for a single
transaction in such Designated LIBOR Currency in such market at
such time. If at least two such quotations are provided, LIBOR
determined on such LIBOR Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR determined on such LIBOR Interest Determination
Date will be the arithmetic mean of the rates quoted as of 11:00
A.M. in the applicable Principal Financial Center (as defined
below), on such LIBOR Interest Determination Date by three major
banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to
leading banks commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date,
having the Index Maturity designated on the face hereof in a
principal amount that is representative for a single transaction in
such Designated LIBOR Currency in such market at such time;
provided, however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR
determined on such LIBOR Interest Determination Date will be LIBOR
in effect on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency (including a
composite currency), if any, designated on the face hereof as the Designated
LIBOR Currency. If no such currency is designated on the face hereof, the
Designated LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Designated LIBOR Currency
(if "LIBOR Reuters" is designated on the face hereof), or (b) the display on
the Dow Jones Telerate Service for the purpose of displaying the London
interbank rates of major banks for the applicable designated LIBOR Currency
(if "LIBOR Telerate" is designated on the face hereof). If neither LIBOR
Reuters nor LIBOR Telerate is specified on the face hereof, LIBOR for the
applicable Designated LIBOR Currency will be determined as if LIBOR Telerate
(and, if the U.S. dollar is the Designated LIBOR Currency, page 3750) had
been chosen.
"Principal Financial Center" means, unless otherwise specified on
the face hereof, the capital city of the country that issues as its legal
tender the Designated LIBOR Currency of this Note, except that with respect
to U.S. dollars and ECUs, the Principal Financial Center shall be The City of
New York and Brussels, respectively.
Determination of Prime Rate. If the Interest Rate Basis specified on the
face hereof is the Prime Rate, the interest rate determined with respect to
the Prime Interest Determination Date shall be the Prime Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified
on the face hereof, as determined on such Prime Interest Determination Date.
"Prime Rate" means, with respect to any Prime Interest
Determination Date, the rate set forth on such date in H.15(519) under the
heading "Bank Prime Loan." In the event that such rate is not published
prior to 9:00 A.M., New York City time, on the Calculation Date pertaining to
such Prime Interest Determination Date, then the Prime Rate with respect to
such Prime Interest Determination Date shall be the arithmetic mean of the
rates of interest publicly announced by each bank that appears on the Reuters
Screen USPRIME1 Page as such bank's prime rate or base lending rate as in
effect for that Prime Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen USPRIME1 Page for the Prime Interest
Determination Date, the Prime Rate with respect to such Prime Interest
Determination Date shall be the arithmetic mean of the prime rates quoted on
the basis of the actual number of days in the year divided by 360 as of the
close of business on such Prime Interest Determination Date by at least two
of the three major money center banks in The City of New York selected by the
Calculation Agent. If fewer than two quotations are provided, the Prime Rate
with respect to such Prime Interest Determination Date shall be determined on
the basis of the rates furnished in The City of New York by the appropriate
number of substitute banks or trust companies organized and doing business
under the laws of the United States, or any state thereof, having total
equity capital of at least U.S. $500 million and being subject to supervision
or examination by Federal or state authority, selected by the Calculation
Agent to provide such rate or rates; provided, however, that if the
appropriate number of substitute banks or trust companies selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate with
respect to such Prime Interest Determination Date will be the Prime Rate in
effect immediately prior to such Prime Interest Determination Date. "Reuters
Screen USPRIME1 Page" means the display designated as page "USPRIME1" on the
Reuters Monitor Money Rate Service (or such other page as may replace the
USPRIME1 page on the service for the purpose of displaying the prime rate or
base lending rate of major banks).
Determination of Treasury Rate. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the interest rate determined with respect to
the Treasury Interest Determination Date shall be the Treasury Rate plus or
minus the Spread, if any, or multiplied by the Spread Multiplier, if any,
specified on the face hereof, as determined on such Treasury Interest
Determination Date.
<PAGE>
"Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct
obligations of the United States ("Treasury bills") having the Index Maturity
specified on the face hereof as published in H.15(519) under the heading,
"Treasury bills -- auction average (investment)" or, if not so published by
3:00 P.M., New York City time, on the Calculation Date pertaining to such
Treasury Interest Determination Date, the average auction 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) as otherwise announced by the United States
Department of the Treasury. In the event that such rate is not available by
3:00 P.M., New York City time, on the Calculation Date pertaining to such
Treasury Interest Determination Date, or if no such auction is held in a
particular week, then the Treasury Rate with respect to such Treasury
Interest Determination Date shall be calculated by the Calculation Agent and
shall be a yield to maturity (expressed as a bond equivalent, on the basis of
a year of 365 or 366 days, as applicable, and applied on a daily basis) of
the arithmetic mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time, on such Treasury Interest Determination Date,
of three leading primary U.S. government securities dealers selected by the
Calculation Agent for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity designated 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 Treasury Rate with respect
to such Treasury Interest Determination Date will be the Treasury Rate in
effect immediately prior to such Treasury Interest Determination Date.
The Calculation Agent shall calculate the interest rate on this
Note in accordance with the foregoing as soon as practicable after the
Interest Determination Date.
The principal of and any premium and interest on this Note are
payable by the Company in the Specified Currency for this Note. If the
Specified Currency for this Note is other than U.S. dollars, the Company will
(unless otherwise specified on the face hereof) arrange to convert all
payments in respect of this Note into U.S. dollars in the manner described in
the following paragraph. If this Note has a Specified Currency other than
U.S. dollars, the holder of this Note may (unless otherwise specified on the
face hereof) elect to receive all payments in respect of this Note in the
Specified Currency by delivery of a written notice to the Trustee for such
Note not later than fifteen calendar days prior to the applicable payment
date, except under the circumstances described below. Such election will
remain in effect until revoked by written notice to such Trustee received not
later than fifteen calendar days prior to the applicable payment date.
The amount of any U.S. dollar payment in respect of this Note will
be determined by the Exchange Rate Agent based on the highest firm bid
quotation expressed in U.S. dollars received by the Exchange Rate Agent at
approximately 11:00 a.m., New York City time, on the second Business Day
preceding the applicable payment date (or, if no such rate is quoted on such
date, the last date on which such rate was quoted), from three (or, if three
are not available, then two) recognized foreign exchange dealers in The City
of New York (one of which may be an Agent (as such term is used in the
Distribution Agreement dated November , 1996 relating to the Notes) and
another of which may be the Exchange Rate Agent) selected by the Exchange
Rate Agent, for the purchase by the quoting dealer, for settlement on such
payment date, of the aggregate amount of such Specified Currency payable on
such payment date in respect of all Notes denominated in such Specified
Currency. All currency exchange costs will be borne by the registered
Holders of such Notes by deductions from such payments.
Except as set forth below, if payment in respect of this 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 other
circumstances beyond the Company's control 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 in respect of this Note shall be made in U.S.
dollars; provided that the Company, at its option, may resume making payments
in such currency once such currency is again available or so used. The
amounts so payable on any date in such currency shall be converted into U.S.
dollars on the basis of the most recently available market exchange rate for
such currency or as otherwise indicated on the face hereof. Any payment in
respect of this Note made under such circumstances in U.S. dollars will not
constitute an Event of Default under the Indenture.
If payment in respect of this Note is required to be made in ECU
and ECU are no longer used in the European Monetary System, then all payments
in respect of this Note shall be made in U.S. dollars; provided that the
Company, at its option, may resume making payments in ECU once ECU are again
so used. The amount of each payment in U.S. dollars shall be computed on the
basis of the equivalent of ECU in U.S. dollars, determined as described
below, as of the second Business Day prior to the date on which such payment
is due.
The equivalent of ECU in U.S. dollars as of any date shall be
determined by the Trustee for this Note on the following basis. The
component currencies of ECU for this purpose (the "Components") shall be the
currency amounts that were components of ECU as of the last date on which ECU
were used in the European Monetary System. The equivalent of 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 such Trustee or such Exchange Rate Agent, as the case may be,
on the basis of the most recently available Market Exchange Rates for such
Components or as otherwise indicated on the face hereof.
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 be 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 made by the Trustee or the
Exchange Rate Agent shall be at its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and binding on the Holder
of this Note.
All percentages resulting from any calculations under this Note
will be rounded, if necessary, to the nearest one hundred thousandth of a
percentage point (with five one-millionths of a percentage point being
rounded upward) and all currency or currency unit or dollar amounts used in
or resulting from any such calculation in respect of the Notes will be
rounded to the nearest one-hundredth of a unit (with five one-thousandths
being rounded upward) or nearest cent (with one-half cent being rounded
upward), as the case may be.
<PAGE>
SECTION 3. Supplemental Indentures. The Indenture contains
provisions permitting the Company and the Trustee, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding of all series to be affected (acting as
one class) to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture
or modifying in any manner the rights of the Holders of the Securities or
such series; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each outstanding Security affected
thereby , among other things, (i) change the fixed maturity of the principal
of, or any installment of principal of or interest on, any Security;
(ii) reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof; (iii) impair the right to
institute suit for the enforcement of any such payment on or after the fixed
maturity thereof (or, in the case of redemption, on or after the redemption
date); (iv) reduce the percentage in principal amount of the outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of the Indenture or certain
defaults thereunder and their consequences) provided for in the Indenture;
(v) change any obligation of the Company, with respect to outstanding
Securities of a series, to maintain an office or agency in the places and for
the purposes specified in the Indenture for such series; or (vi) modify any
of the foregoing provisions or the provisions for the waiver of certain
covenants and defaults, except to increase any applicable percentage of the
aggregate principal amount of outstanding Securities the consent of the
Holders of which is required or to provide with respect to any particular
series the right to condition the effectiveness of any supplemental indenture
as to that series on the consent of the Holders of a specified percentage of
the aggregate principal amount of outstanding Securities of such series or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the Holder of each outstanding Security
affected thereby. It is also provided in the Indenture that the Holders of a
majority in aggregate principal amount of the Securities of a series at the
time outstanding may on behalf of the Holders of all the Securities of such
series waive any past default under the Indenture with respect to such series
and its consequences, except a default in the payment of the principal of,
premium, if any, or interest, if any, on any Security of such series or in
respect of a covenant or provision which cannot be modified without the
consent of the Holder of each outstanding Security of the series affected.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders and owners of this Note
and any Notes which may be issued in exchange or substitution herefor,
irrespective of whether or not any notation thereof is made upon this Note or
such other Notes.
SECTION 4. Obligation of the Company Absolute. 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, premium, if any, and interest on this
Note at the place, at the respective times, at the rate and in the coin or
currency herein prescribed.
SECTION 5. Discharge of Obligations. The Indenture permits the
Company to discharge its obligations with respect to the Notes on the 91st
day following the satisfaction of the conditions set forth in the Indenture,
which include the deposit with the Trustee of money or U.S. Government
Obligations or a combination thereof sufficient to pay and discharge each
installment of principal of (including premium, if any, on) and interest, if
any, on the outstanding Notes.
SECTION 6. Consolidation or Merger of the Company. If the Company
shall, in accordance with Section 901 of the Indenture, consolidate with or
merge into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, the successor shall
succeed to, and be substituted for, the Person named as the "Company" on the
face of this Note, all on the terms set forth in the Indenture.
SECTION 7. Authorized Denominations. The Notes are issuable in
registered form without coupons in denominations of $1,000 or any integral
multiple thereof. In the manner and subject to the limitations provided in
the Indenture, but without the payment of any service charge, Notes may be
exchanged for an equal aggregate principal amount of Notes of other
authorized denominations at the office or agency of the Company maintained
for such purpose in the Borough of Manhattan, The City and State of New York.
SECTION 8. Registration of Transfer. Upon due presentment for
registration of transfer of this Note at the office or agency of the Company
for such registration, a new Note or Notes of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
herefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection
therewith.
If this Note is a global Note (as specified on the face hereof),
this Note is exchangeable for certificated Notes only upon the terms and
conditions provided in the Indenture. Except as provided above, owners of
beneficial interests in this permanent global Note will not be entitled to
receive physical delivery of Notes in certificated registered form and will
not be considered the Holders thereof for any purpose under the Indenture.
SECTION 9. Owners. Prior to due presentment for registration of
transfer of this Note, the Company, the Trustee and any agent of the Company
or the Trustee may deem and treat the registered Holder hereof as the owner
of this Note (whether or not this Note shall be overdue) for the purpose of
receiving payment of the principal of, premium, if any, and interest on this
Note, as herein provided, and for all other purposes, and neither the Company
nor the Trustee nor any agent of the Company or the Trustee shall be affected
by any notice to the contrary. All payments made to or upon the order of
such registered Holder shall, to the extent of the sum or sums paid,
effectually satisfy and discharge liability for moneys payable on this Note.
SECTION 10. Waiver and Release of Liability. No recourse for the
payment of the principal of, premium, if any, or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse
under or upon any obligation, covenant or agreement of the Company in the
Indenture or any indenture supplemental thereto or in any Note or because of
the creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or any successor corporation, whether by virtue of any
constitution, statute or role of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly waived and
released.
SECTION 11. Redemption. If so specified on the face hereof, this
Note may be redeemed at the option of the Company as a whole or from time to
time in part, on or after the date designated as the Initial Redemption Date
on the face hereof, at the redemption price specified on the face hereof,
together with unpaid interest accrued on the principal amount hereof to be
redeemed to the date of redemption, but interest installments that are due on
or prior to the date of redemption will be payable to the Holder of this Note
of record at the close of business on the relevant Regular Record Date
referred to on the face hereof, all as provided in the Indenture. The
Company may exercise such option by causing the Trustee to mail a notice of
such redemption at least 30 but not more than 60 calendar days prior to the
date of redemption, subject to all the provisions and conditions of the
Indenture. In the event of redemption of this Note in part only, a new Note
or Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
<PAGE>
SECTION 12. Repayment. If so specified on the face hereof, this
Note will be repayable prior to Stated Maturity at the option of the Holder
on the Optional Repayment Dates shown on the face hereof at the Optional
Repayment Prices shown on the face hereof together with interest accrued and
unpaid thereon to the date of repayment. In order for this Note (if it is
repayable at the option of the Holder) to be repaid prior to Stated Maturity,
the Paying Agent must receive at least 30 but not more than 45 calendar days
prior to an Optional Repayment Date (i) this Note with the form below
entitled "Option to Elect Repayment" duly completed or (ii) a telegram,
telex, facsimile transmission, hand delivery or letter (first class, postage
prepaid) from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
in the United States of America setting forth the name of the Holder of this
Note, the principal amount of this Note, the principal amount of the Note to
be repaid, the certificate number or a description of the tenor and terms of
this Note, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note with the form below entitled "Option
to Elect Repayment" duly completed will be received by the Paying Agent not
later than five Business Days after the date of such telegram, telex,
facsimile transmission, hand delivery or letter (first class, postage
prepaid). If the procedure described in clause (ii) of the preceding
sentence is followed, this Note with such form duly completed must be
received by the Trustee by such fifth Business Day. Exercise of the
repayment option by the Holder of this Note shall be irrevocable, except that
a Holder who has tendered this Note for repayment may revoke any such tender
for repayment by written notice to the Trustee received prior to the close of
business on the tenth calendar day prior to the repayment date. The
repayment option may be exercised by the Holder of this Note for less than
the entire principal amount of this Note provided that the principal amount
of this Note remaining outstanding after such repayment is an authorized
denomination. Upon such partial repayment, this Note shall be cancelled and
a new Note or Notes for the remaining principal amount hereof shall be issued
in the name of the Holder of this Note.
SECTION 13. Optional Interest Reset. If so specified on the face
hereof, the Spread or the Spread multiplier on this Note may be reset by the
Company on the date or dates specified on the face hereof (each an "Optional
Interest Reset Date"). The Company may exercise such option by notifying the
Trustee of such exercise at least 45 but not more than 60 calendar days prior
to an Optional Interest Reset Date. If the Company so notifies the Trustee
of such exercise, the Trustee will send, not later than 40 calendar days
prior to each Optional Interest Reset Date, by telegram, telex, facsimile
transmission, hand delivery or letter (first class, postage prepaid) to the
Holder of this Note a notice (the "Reset Notice") indicating (i) that the
Company has elected to reset the Spread or the Spread Multiplier, (ii) such
new Spread or Spread Multiplier and (iii) the provisions, if any, for
redemption during the period from such Optional Interest Reset Date to the
next Optional Interest Reset Date or, if there is no such next Optional
Interest Reset Date, to the Stated Maturity of this Note (each such period a
"Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such
redemption may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days
prior to an Optional Interest Reset Date, the Company may, at its option,
revoke the Spread and/or the Spread Multiplier provided for in the Reset
Notice and establish a Spread and/or Spread Multiplier resulting in a higher
interest rate for the Subsequent Interest Period commencing on such Optional
Interest Reset Date by causing the Trustee to send by telegram, telex,
facsimile transmission, hand delivery or letter (first class, postage
prepaid) notice of such Spread and/or Spread Multiplier resulting in a higher
interest rate to the Holder of this Note. Such notice shall be irrevocable.
All Notes with respect to which the Spread and/or the Spread Multiplier is
reset on an Optional Interest Reset Date will bear such Spread and/or Spread
Multiplier resulting in a higher interest rate, whether or not tendered for
repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to
reset the Spread and/or Spread Multiplier of this Note, the Holder of this
Note will have the option to elect repayment of this Note by the Company on
such Optional Interest Reset Date at a price equal to the principal amount
hereof plus interest accrued and unpaid thereon to such Optional Interest
Reset Date. In order to obtain repayment on an Optional Interest Reset Date,
the Holder must follow the procedures set forth under Section 12 for optional
repayment except that the period for delivery or notification to the Trustee
shall be at least 25 but not more than 35 calendar days prior to such
Optional Interest Reset Date. If the Holder has tendered this Note for
repayment following receipt of a Reset Notice, the Holder may revoke such
tender for repayment by written notice to the Trustee received prior to 5:00
P.M., New York City time, on the tenth calendar day prior to such Optional
Interest Reset Date.
SECTION 14. Optional Extension of Maturity. If so specified on
the face hereof, the Stated Maturity of this Note may be extended at the
option of the Company for the period or periods of from one to five whole
years specified on the face hereof (each an "Extension Period") up to but not
beyond the date (the "Final Maturity Date") set forth on the face hereof.
The Company may exercise such option with respect to this Note by notifying
the Trustee of such exercise at least 45 but not more than 60 calendar days
prior to the Stated Maturity of this Note in effect prior to the exercise of
such option (the "Original Stated Maturity Date"). If the Company so
notifies the Trustee of such exercise, the Trustee will send, not later than
40 calendar days prior to the Original Stated Maturity Date, by telegram,
telex, facsimile transmission, hand delivery or letter (first class, postage
prepaid) to the Holder of this Note, a notice (the "Extension Notice")
indicating (i) that the Company has elected to extend the Stated Maturity of
this Note, (ii) the new Stated Maturity, (iii) the Spread and/or Spread
Multiplier applicable to the Extension Period and (iv) the provisions, if
any, for redemption during such Extension Period, including the date or dates
on which or the period or periods during which and the price or prices at
which such redemption may occur during such Extension Period. Upon the
Trustee's sending of the Extension Notice, the Stated Maturity of this Note
shall be extended automatically and, except as modified by the Extension
Notice and as described in the next two paragraphs, this Note will have the
same terms as prior to the sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days
prior to the Original Stated Maturity Date of this Note, the Company may, at
its option, revoke the Spread and/or Spread Multiplier provided for in the
Extension Notice and establish a Spread and/or Spread Multiplier resulting in
a higher interest rate for the Extension Period by causing the Trustee to
send by telegram, telex, facsimile transmission, hand delivery or letter
(first class, postage prepaid) notice of such Spread and/or Spread Multiplier
resulting in a higher interest rate to the Holder of this Note. Such notice
shall be irrevocable. All Notes with respect to which the Stated Maturity is
extended will bear such Spread and/or Spread Multiplier resulting in a higher
interest rate for the Extension Period, whether or not tendered for repayment
as provided in the next paragraph.
If the Company elects to extend the Stated Maturity of this Note,
the Holder will have the option to elect repayment of this Note by the
Company on the Original Stated Maturity Date at a price equal to the
principal amount hereof, plus interest accrued and unpaid thereon to such
date. In order to obtain repayment on the Original Stated Maturity Date, the
Holder must follow the procedures set forth under Section 12 for optional
repayment, except that the period for delivery or notification to the Trustee
shall be at least 25 but not more than 35 calendar days prior to the Original
Stated Maturity Date. A Holder who has tendered this Note for repayment
following receipt of an Extension Notice may revoke such tender for repayment
by written notice to the Trustee received prior to 5:00 P.M., New York City
time, on the tenth calendar day prior to the Original Stated Maturity Date.
<PAGE>
SECTION 15. Sinking Fund. This Note will not be subject to any
sinking fund.
SECTION 16. Original Issue Discount Notes. Notwithstanding
anything herein to the contrary, if this Note is an Original Issue Discount
Note, the amount payable in the event the principal amount hereof is declared
to be due and payable immediately by reason of an Event of Default or in the
event of redemption or repayment prior to the Stated Maturity hereof in lieu
of the principal amount due at the Stated Maturity hereof shall be the
Amortized Face Amount of this Note as of the date of declaration, redemption
or repayment, as the case may be. The "Amortized Face Amount" of this Note
shall be the amount equal to (a) the principal amount of this Note multiplied
by the Issue Price (as set forth on the face hereof) plus (b) that portion of
the difference between the dollar amount determined pursuant to the preceding
clause (a) and the principal amount hereof that has accreted at the Yield to
Maturity (as set forth on the face hereof) (computed in accordance with
generally accepted United States bond yield computation principles) to such
date of declaration, redemption or payment, but in no event shall the
Amortized Face Amount of this Note exceed its principal amount.
SECTION 17. Events of Default. In case an Event of Default (as
defined in the Indenture) with respect to the Securities of this series shall
have occurred and be continuing, the principal hereof together with accrued
interest thereon, if any, may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
SECTION 18. Governing Law. This Note shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 19. Defined Terms. All terms used in this Note which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture; and all references in the Indenture to "Security" or "Securities"
shall be deemed to include the Notes.
<PAGE>
OPTION TO ELECT REPAYMENT
[To be completed only if this Note is repayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to
have the Company repay the principal amount of this Note or portion hereof
below designated at (i) the applicable Optional Repayment Price indicated on
the face hereof, together with interest accrued and unpaid thereon to the
date of repayment, if this Note is to be repaid pursuant to Section 12 of
this Note, or (ii) 100% of the principal amount of this Note to be repaid
plus interest accrued and unpaid thereon to the Optional Interest Reset Date,
if this Note is to be repaid pursuant to Section 13 hereof, or to the
Original Stated Maturity Date, if this Note is to be repaid pursuant to
Section 14 hereof. Specify the denomination or denominations (which shall be
$1,000 or an integral multiple thereof in excess thereof or, if the Note is
denominated in a currency other than U.S. dollars, an Authorized
Denomination) of the Note or Notes to be issued to the Holder for the portion
of the within Note not being repaid (in the absence of any specification, one
such Note will be issued for the portion not being repaid):
______________________________
Dated:________________________ ___________________________
Signature
Sign exactly as name appears on
the front of this Note.
Principal amount to be repaid Indicate address where check is
if amount to be repaid is less to be sent, if repaid:
than the entire principal amount
of this Note (principal amount
remaining must be an authorized
denomination)
$______________________________
(which shall be an integral
multiple of $1,000 or, if the
Note is denominated in a SOCIAL SECURITY OR OTHER
currency other than U.S. dollars, TAXPAYER ID NUMBER
of an amount equal to the integral ___________________________
multiples referred to on the face
hereof under "Authorized
Denominations" (or, if no such
reference is made, an amount
equal to the minimum Authorized
Denomination)).
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as through 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 TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
___________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing __________________ attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated:_____________________ _____________________________
Signature
Sign exactly as name appears on the
front of this Note (SIGNATURE MUST
BE GUARANTEED by a commercial bank,
a trust company or by a member of
the New York Stock Exchange which is
a member of an approved signature
guarantee medallion program pursuant
to Securities and Exchange Commission
Rule 17Ad-15.)
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT 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.
<PAGE>
Exhibit A.3
(Form of Fixed Rate
Security with and without
Optional Redemption Provision)
(Form of Face of [Note] 1/ )
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.] 2/
No.:
POLAROID CORPORATION
% [Note] Due
No.: CUSIP No.:
$
POLAROID CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to
or registered assigns, the principal sum of
Dollars, at the office or agency of the Company designated for such purpose,
on , in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payments of public
and private debts, and to pay interest, semi-annually on
and of each year, on said principal sum at said
office or agency, in like coin or currency, at the rate of %
per annum, from the or the , as the case may
be, next preceding the date of this [Note] to which interest has been paid,
unless the date hereof is a date to which interest has been paid, in which
case from the date of this [Note], or unless no interest has been paid on the
[Notes] due (as defined on the reverse hereof), in which case from
until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after
or as the case may be, and before the following
or , this [Note] shall bear interest from such
or , provided, however, that if the Company
shall default in the payment of interest due on such or
, then this [Note] shall bear interest from the next preceding
or to which interest has been paid, or, if no
interest has been paid on the [Notes] due ,from
. The interest so payable on any or
will subject to certain exceptions
__________________________________
1/ Bracketed references to "Note" or "Notes" should be
changed to reflect the designation of the series of
Securities being issued.
2/ The bracketed language is to be included if the Securities
are included within DTC's book-entry system.
<PAGE>
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this [Note] is registered at the close of business on
such or , as the
case may be, next preceding such or
, unless the Company shall default in the payment of interest due on such
interest payment date, in which case such defaulted interest, at the option
of the Company, may be paid to the person in whose name this [Note] is
registered at the close of business on a special record date for the payment
of such defaulted interest established by notice to the registered holders of
[Notes] not less than 10 days preceding such special record date or may be
paid in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the [Notes] due may be listed. Payment of
interest may, at the option of the Company, be made by check mailed to the
registered address of the person entitled thereto.
Reference is made to the further provisions of this [Note] set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This [Note] shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: POLAROID CORPORATION
by__________________________________
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities of the
Series designated herein issued under the
within-mentioned Indenture. by__________________________________
STATE STREET BANK AND TRUST COMPANY,
as Trustee
by
_____________________________________
Authorized Signatory
-2-
<PAGE>
(Form of Reverse of [Note])
This [Note] is one of a duly authorized issue of unsecured
debentures, notes or other evidences of indebtedness of the
Company (hereinafter called the "Securities), of the series
hereinafter specified, all issued or to be issued under an
indenture dated as of November [ ], 1996 (hereinafter called the
"Indenture"), duly executed and delivered by the Company to
State Street Bank and Trust Company, a trust company
duly organized and existing under the laws of the
Commonwealth of Massachusetts, as trustee (hereinafter called the "Trustee"), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the respective rights and duties thereunder of the Trustee,
the Company and the holders of the Securities. 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 at different
rates, may be subject to different redemption provisions, may be subject to
different sinking, purchase or analogous funds, may be subject to different
covenants and Events of Default and may otherwise vary as in the Indenture
provided. This [Note] is one of a series designated as the % [Notes] due
of the Company (hereinafter called the "[Notes] due ") issued under the
Indenture, limited in aggregate principal amount to $ .
In case an Event of Default with respect to the [Notes] due ,
as defined in the Indenture, shall have occurred and be
continuing, the principal hereof together with interest accrued
thereon, if any, may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less
than a majority in aggregate principal amount of the Securities
at the time outstanding of all series to be affected (acting as
one class) to execute supplemental indentures adding any provisions to
or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the holders of the Securities
of such series to be affected; provided, however, that no such
supplemental indenture shall, among other things, (i) change the
fixed maturity of the principal of, or any installment of principal
of or interest on, any Security; (ii) reduce the principal
amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof; (iii) impair
the right to institute suit for the enforcement of any
such payment on or after the fixed maturity thereof (or, in
the case of redemption, on or after the redemption date);
(iv) reduce the percentage in principal amount of the
outstanding Securities of any series, the consent of
whose holders is required for any such supplemental indenture,
or the consent of whose holders is required for any waiver (of
compliance with certain provisions of the Indenture or certain
defaults thereunder and their consequences) provided for in the
Indenture; (v) change any obligation of the Company, with respect
to outstanding Securities of a series, to maintain an office or
agency in the places and for the purposes specified in the Indenture for
such series; or (vi) modify any of the foregoing provisions or
the provisions for the waiver of certain covenants and defaults,
except to increase any applicable percentage of the aggregate
principal amount of outstanding Securities the consent
of the holders of which is required or to provide with
respect to any particular series the right to condition
the effectiveness of any supplemental indenture as to that
series on the consent of the holders of a specified percentage of the
aggregate principal amount of outstanding Securities of such
series or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent
of the holder of each outstanding Security affected thereby.
It is also provided in the Indenture that the holders of
a majority in aggregate principal amount of the Securities
of a series at the time outstanding may on behalf of the holders
of all the Securities of such series waive any past default
under the Indenture with respect to such series and its
consequences, except a default in the payment of the principal
of, premium, if any, or interest, if any, on any Security of
such series or in respect of a covenant or provision which
cannot be modified without the consent of the Holder of
each outstanding Security of the series affected. Any
such consent or waiver by the holder of this [Note]
shall be conclusive and binding upon such holder and upon
all future holders and owners of the [Note] and any
[Notes] due which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof is made
upon this [Note] or such other [Notes] due .
-3-
<PAGE>
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, premium, if any,
and interest on this [Note] at the place, at the respective
times, at the rate and in the coin or currency herein prescribed.
The Indenture permits the Company to Discharge its obligations with respect
to the [Notes] due on the first day following the satisfaction of the
conditions set forth in the Indenture, which include the irrevocable
deposit with the Trustee of money or U.S. Government Obligations
or a combination thereof sufficient to pay and discharge each
installment of principal of (including premium, if any, on)
and interest, if any, on the outstanding [Notes] due .
If the Company shall, in accordance with Section 901 of the Indenture,
consolidate with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person, the successor
shall succeed to, and be substituted for, the Person named as the
"Company" on the face of this [Note], all on the terms set
forth in the Indenture.
The [Notes] due are issuable in registered form without coupons in
denominations of $1,000 or any integral multiple thereof. In the manner and
subject to the limitations provided in the Indenture, but without the payment of
any service charge, [Notes] due may be exchanged for an equal aggregate
principal amount of [Notes] due of other authorized denominations at the
office or agency of the Company maintained for such purpose in the Borough of
Manhattan, the City and State of New York.
[The [Notes] due may be redeemed as a whole, or from time to time in
part, at the option of the Company at any time upon mailing a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption to the holders of the [Notes] due at their last registered
addresses, all as provided in the Indenture, at the following
optional redemption prices (expressed in percentages of the principal
amount), together in each case with accrued interest to the date
fixed for redemption.
If redeemed during the twelve-month period beginning
Year Percentage
] 3/
____________________________
3/ Bracketed language to be included in Securities
redeemable at the option of the Company.
-4-
<PAGE>
Upon due presentment for registration of transfer of this [Note] at the
office or agency of the Company for such registration in the Borough of
Manhattan, the City and State of New York, a new [Note] or [Notes] of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange herefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
Prior to due presentment for registration of transfer of this [Note], the
Company, the Trustee and any agent of the Company or the Trustee may deem and
treat the registered holder hereof as the absolute owner of this [Note] (whether
or not this [Note] shall be overdue) for the purpose of receiving payment of the
principal of, premium, if any, and interest on this Note, as herein provided,
and for all other purposes, and neither the Company nor the Trustee
nor any agent of the Company or the Trustee shall be affected by
any notice to the contrary. All payments made to or upon the order
of such registered holder shall, to the extent
of the sum or sums paid, effectively satisfy and discharge
liability for moneys payable on this [Note].
No recourse for the payment of the principal of, premium,
if any, or interest on this [Note], or for any claim based
hereon or otherwise in respect hereof, and no recourse under
or upon any obligation, covenant or agreement of the Company in
the Indenture or any indenture supplemental thereto or in
any [Note], or because of the creation of any indebtedness
represented thereby, shall be had against any
incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor
corporation, either directly or through the
Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Unless otherwise defined in this [Note], all terms used
in this [Note] which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THIS [NOTE] SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
-5-
<PAGE>
EXHIBIT B
[FORMS OF CERTIFICATIONS]
EXHIBIT B.1
[FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR CEDEL]
CERTIFICATION
POLAROID CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Fiscal Agency or other
Agreement, as of the date hereof.___________________ principal amount of the
above captioned Securities (i) is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations
or any estate or trust the income of which is subject to United States
Federal income taxation regardless of its source ("United States persons"),
(ii) is owned by United States persons that (a) are foreign branches of
United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) ("financial institutions")) purchasing for their
own account or for resale, or (b) acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution has
agreed, on its own behalf or through its agent, that we may advise the Issuer
or the Issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States
or foreign financial institutions for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States
or foreign financial institutions described in clause (iii) above (whether or
not also described in clause (i) or (ii)) have certified that they have not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in
Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as
amended (the "Act") then this is also to certify with respect to the
principal amount of Securities set forth above that, except as set forth
below, we have received in writing by tested telex or by electronic
transmission, from our Member Organizations entitled to portion of such
principal amount, certifications with respect to such portion, substantially
to the effect set forth in the Fiscal Agency or other Agreement.
<PAGE>
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the Temporary Global security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant, exercise of any
rights or collection of any interest) are no longer true and cannot be relied
upon as the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to
produce this certification to any interested party in such proceedings.
Dated:________________, 19__ **
Yours faithfully,
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels Office,
as operator of the Euroclear System]
or
[CEDEL S.A.]
By__________________________________________
* Note: Unless Morgan Guaranty Brussels and Cedel are otherwise informed by
the Lead Manager or Issuing Agent, the Standard Long-Form Certification set
out in the Operating Procedures will be deemed to meet the requirements of
this sentence.
** Not earlier than the Certification Event to which the certification
relates.
To the extent that this certification is used as a reference document,
drafters should note that the asterisks in the text, and the footnotes, may
be omitted.
-2-
<PAGE>
EXHIBIT B.2
[FORM OF PARTICIPANT CERTIFICATION INCORPORATED
BY REFERENCE IN A CERTIFICATION INSTRUCTION]
CERTIFICATE
POLAROID CORPORATION
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above captioned Securities held by you for our account (i) are
owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the
income of which is subject to the United States Federal income taxation
regardless of its source ("United States persons"), (ii) are owned by
United States person(s) that (a) are foreign branches of a United States
financial institution (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their
own account or for resale, or (b) acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise the
issuer or the issuer's agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States
or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the
Securities is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)) this
is to further certify that such financial institution has not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in
Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as
amended (the "Act"), then this is also to certify that, except as set forth
below, (i) in the case of debt securities, the Securities are beneficially
owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased the
Securities in transactions which did not require registration under the Act
or (ii) in the case of equity securities, the Securities are owned by
(x) non-U.S. person(s) (and such person(s) are not acquiring the Securities
for the account or benefit of U.S. person(s)) or (y) U.S. person(s) who
purchased the Securities in a transaction which did not require registration
under the Act. If this certification is being delivered in connection with
the exercise of warrants pursuant to Section 230.902(m) of Regulation S under
the Act, then this is further to certify that, except as set forth below, the
Securities are being exercised by and on behalf of non-U.S. person(s). As
used in this paragraph the term "U.S. person" has the meaning given to it by
Regulation S under the Act.
<PAGE>
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date,
and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $_____________ of such
interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to
produce this certification to any interested party in such proceedings.
Date: ________________, 19__*
By __________________________________________________
As, or as agent for, the beneficial owner(s)
of the Securities to which this certificate relates
* Not earlier than 15 days prior to the Certification Event to which the
certification relates.
-2-
Exhibit (5)
[Letterhead of]
CRAVATH, SWAINE & MOORE
November 20, 1996
Polaroid Corporation
--------------------
Ladies and Gentlemen:
We have acted as counsel for Polaroid Corporation,
a Delaware corporation (the "Company"), in connection with
the proposed issuance and sale from time to time pursuant to
Rule 415 under the Securities Act of 1993 (the "Securities
Act") of debt securities having an aggregate initial
offering price of up to $500,000,000 (the "Securities") of
the Company to be issued under an Indenture to be entered
into between the Company and State Street Bank and Trust
Company (the "Trustee").
In that connection, we have examined originals, or
copies certified or otherwise identified to our
satisfaction, of such documents, corporate records and other
instruments as we have deemed necessary for the purposes of
this opinion, including the following: (a) the Certificate
of Incorporation of the Company, as amended; (b) the By-laws
of the Company; (c) resolutions adopted by the Board of
Directors of the Company on October 22, 1996; and (d) the
form of Indenture being filed as an exhibit (along with this
opinion) to the Registration Statement on Form S-3 (File
No. 333-0791), which the Company is filing with the
Securities and Exchange Commission, in connection with the
registration under the Securities Act of the proposed issue
and sale of the Securities (the "Registration Statement").
Based on the foregoing, we are of opinion that,
when the Indenture has been executed and delivered by the
Company and the Securities have been duly executed by the
Company and authenticated by the Trustee in accordance with
the Indenture and the resolutions of the Board of Directors
of the Company (or a committee thereof) establishing the
terms and form of the Securities and the Securities have
been delivered to the purchasers thereof against payment of
the purchase price thereof, the Securities will be validly
issued and will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
and other similar laws affecting creditors' rights generally
from time to time in effect and subject to general
principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in
equity or at law).
In rendering the foregoing opinion, we have
assumed that the Indenture will be duly and validly executed
and delivered by the Trustee.
We know that we may be referred to as counsel who
has passed upon the validity of the Securities on behalf of
the Company in a supplement to the Prospectus which will
form a part of the Registration Statement, and we hereby
consent to such use of our name in such supplement and to
the use of this opinion for filing as an Exhibit to the
Registration Statement.
Very truly yours,
/s/ Cravath, Swaine & Moore
Polaroid Corporation
549 Technology Square
Cambridge, MA 02138
Exhibit 12
Polaroid Corporation
Computation of Ratios of Earnings to Fixed Charges
(in millions except for ratios)
Nine Months
Ended
September 29,
Years Ended December 31, 1996
-------------------------------------- ----------
1991 1992 1993 1994 1995
----- ----- ----- ----- -----
EARNINGS
Earnings / (loss) before
income taxes and cumulative
effect of changes in
accounting principle $1,083.2 $163.1 $101.7 $160.7 $(201.4) $ 6.7
Interest expense 58.4 58.5 47.9 46.6 52.1 35.6
Interest portion of
rental expense (A) 8.7 9.1 10.4 10.3 11.1 6.0
-------- ------ ------ ------ ------- ------
Earnings as adjusted $1,150.3 $230.7 $160.0 $217.6 $(138.2) $48.3
======== ====== ====== ====== ======= ======
FIXED CHARGES
Interest expense $58.4 $58.5 $47.9 $46.6 $52.1 $35.6
Interest portion of
rental expense (A) 8.7 9.1 10.4 10.3 11.1 6.0
Capitalized Interest 6.9 10.0 12.6 9.7 4.8 3.8
----- ----- ----- ----- ----- -----
Total fixed charges $74.0 $77.6 $70.9 $66.6 $68.0 $45.4
===== ===== ===== ===== ===== =====
RATIOS OF EARNINGS
TO FIXED CHARGES 15.5(B) 3.0 2.3(C) 3.3 --(D) 1.1(E)
(A) Deemed to be approximately 1/3 of total rental expense.
(B) In 1991, the Company received a pre-tax litigation settlement of
$924.5 million. Excluding the settlement, the ratio of earnings
to fixed charges was 3.1.
(C) In 1993, the Company recorded a pre-tax special charge for
restructuring and other expenses of $44.0 million.
Excluding the pre-tax special charge, the ratio of earnings
to fixed charges was 2.9.
(D) Earnings were insufficient to cover fixed charges by $206.2
million after giving effect to the pre-tax special charge for
restructuring and other expenses of $247.0 million.
Excluding the pre-tax special charge, the ratio of earnings
to fixed charges was 1.6.
(E) In the first nine months of 1996, the Company recorded a
pre-tax special charge for restructuring and other expenses
of $110.0 million. Excluding the pre-tax special charge,
the ratio of earnings to fixed charges was 3.5.
Exhibit 15
----------
The Board of Directors
Polaroid Corporation
Ladies and Gentlemen
Re: Registration Statements No. 333-0791 and No. 33-44661
With respect to the subject registration statements, as amended as of the
date hereof, we acknowledge our awareness of the use therein of our reports
dated April 16, 1996, July 16, 1996 and October 15, 1996, related to our
reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are
not considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
Very truly yours,
/s/ KPMG Peat Marwick, LLP
Boston, Massachusetts
November 21, 1996
Exhibit 23.1
------------
Consent of Independent Auditors
--------------------------------
The Board of Directors
Polaroid Corporation
We consent to incorporation by reference in the registration statements on
Form S-3 (Registration Statement No. 333-0791 and Registration Statement No.
33-44661), as amended as of the date hereof, of Polaroid Corporation of our
audit report dated January 30, 1996 relating to the consolidated balance
sheets of Polaroid Corporation and subsidiaries as of December 31, 1995 and
1994, and the related consolidated statements of earnings, cash flows, and
changes in common stockholders' equity and related schedules for each of the
years in the three year period ended December 31, 1995, which report appears
in the December 31, 1995 annual report on Form 10-K of Polaroid Corporation
and to the reference to our firm under the heading "Experts" in the
Prospectus.
Our report refers to a change in 1993 in the method of accounting for income
taxes and for certain postretirement and postemployment benefits.
/s/ KPMG Peat Marwick, LLP
Boston, Massachusetts
November 21, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2) __
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
John R. Towers, Esq. Senior Vice President and Corporate Secretary
225 Franklin Street, Boston, Massachusetts 02110
(617)654-3253
(Name, address and telephone number of agent for service)
_____________________
Polaroid Corporation
--------------------
(Exact name of obligor as specified in its charter)
Delaware 04-1734655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
549 Technology Square
Cambridge, MA 02139
(617) 386-3273
(Address of principal executive offices) (Zip Code)
____________________
Debt Securities
(Title of indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority
to which it is subject.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve
System, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
The trustee is authorized to exercise corporate trust
powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each
such affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Boston Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. A copy of the articles of association of the trustee as now
in effect.
A copy of the Articles of Association of the trustee, as
now in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of
association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with
the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4 to
the Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Eastern Edison
Company (File No. 33-37823) and is incorporated herein by
reference thereto.
-1-
<PAGE>
5. A copy of each indenture referred to in Item 4. if the obligor
is in default.
Not applicable.
6. The consents of United States institutional trustees required
by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act
is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority.
A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority is annexed hereto as Exhibit 7 and made a
part hereof.
NOTES
In answering any item of this Statement of Eligibility and
Qualification which relates to matters peculiarly within the knowledge of
the obligor or any underwriter for the obligor, the trustee has relied
upon information furnished to it by the obligor and the underwriters, and
the trustee disclaims responsibility for the accuracy or completeness of
such information.
The answer furnished to Item 2. of this statement will be amended,
if necessary, to reflect any facts which differ from those stated and
which would have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of
Massachusetts, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Boston and The Commonwealth of
Massachusetts, on the 20th day of November, 1996.
STATE STREET BANK AND TRUST COMPANY
By: /s/ E. Decker Adams
--------------------------
E. Decker Adams
Vice President
-2-
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939, as amended, in connection with the proposed
issuance by Polaroid Corporation, of its Debt Securities we hereby
consent that reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ E. Decker Adams
--------------------------
E. Decker Adams
Vice President
Dated: November 20, 1996
-3-
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company
of Boston, Massachusetts and foreign and domestic subsidiaries, a state
banking institution organized and operating under the banking laws of
this commonwealth and a member of the Federal Reserve System, at the
close of business June 30, 1996, published in accordance with a call made
by the Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act and in accordance with a call made by the
Commissioner of Banks under General Laws, Chapter 172, Section 22(a).
Thousands of
ASSETS Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 1,787,130
Interest-bearing balances 7,756,486
Securities 8,430,910
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary 4,090,665
Loans and lease financing receivables:
Loans and leases, net of unearned income 4,426,059
Allowance for loan and lease losses 70,088
Loans and leases, net of unearned income
and allowances 4,355,971
Assets held in trading accounts 880,647
Premises and fixed assets 367,731
Other real estate owned 1,067
Investments in unconsolidated subsidiaries 65,772
Customers' liability to this bank on
acceptances outstanding 33,530
Intangible assets 68,505
Other assets 1,002,465
----------
Total assets 28,840,879
==========
LIABILITIES
Deposits:
In domestic offices 7,531,683
Noninterest-bearing 5,387,924
Interest-bearing 2,143,759
In foreign offices and Edge subsidiary 12,050,265
Noninterest-bearing 46,768
Interest-bearing 12,003,497
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary 5,337,231
Demand notes issued to the U.S. Treasury
and Trading Liabilities 871,847
Other borrowed money 794,349
Bank's liability on acceptances executed
and outstanding 33,530
Other liabilities 665,616
----------
Total liabilities 27,284,521
==========
EQUITY CAPITAL
Common stock 29,931
Surplus 276,915
Undivided profits 1,247,942
Cumulative foreign currency translation adjustments 1,570
----------
Total equity capital 1,556,358
----------
Total liabilities and equity capital 28,840,879
==========
-4-
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above
named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
/s/ Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best
of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve
System and is true and correct.
/s/ David A. Spina
/s/ Marshall N. Carter
/s/ Charles F. Kaye
-5-
