As filed with the Securities and Exchange Commission on March 1, 2006
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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AMERADA HESS CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
13-4921002
(I.R.S. Employer Identification No.)
1185 Avenue of the Americas
New York, New York 10036
(212) 997-8500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
J. Barclay Collins II
Amerada Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
(212) 997-8500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Kevin Keogh, Esq.
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
(212) 819-8200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
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 this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. [X]
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
AMOUNT TO BE REGISTERED/PROPOSED
TITLE OF EACH CLASS OF MAXIMUM OFFERING PRICE PER UNIT/PROPOSED
SECURITIES TO BE REGISTERED MAXIMUM OFFERING PRICE/AMOUNT OF REGISTRATION FEE
- --------------------------------- -------------------------------------------------
Debt Securities
Warrants (1)
Common Stock $1.00 par value
Preferred Stock, $1.00 par value
Depositary Shares (2)
Purchase Contracts (3)
Units (4)
(1) An indeterminate aggregate initial offering price or number of the
securities of each identified class is being registered as may from
time to time be sold at indeterminate prices. Separate consideration
may or may not be received for securities that are issuable on
exercise, conversion or exchange of other securities. In accordance
with Rules 456(b) and 457(r), the Registrant is deferring payment of
all of the registration fee, except for $66,742.50 that has already
been paid with respect to $1,500,000,000 aggregate initial offering
price of securities that were previously registered pursuant to
Registration Statement No. 333-110294, and were not sold thereunder.
(2) In the event that the Company elects to offer to the public fractional
interests in shares of Preferred Stock registered hereunder,
Depositary Shares, evidenced by depositary receipts issued pursuant to
a deposit agreement, will be distributed to those persons purchasing
such fractional interests, and the shares of Preferred Stock will be
issued to the depositary under any such agreement.
(3) Purchase Contracts issued hereunder may require the holder thereof to
purchase or sell Debt Securities, Preferred Stock, Depositary Shares
or Common Stock of Amerada Hess Corporation.
(4) Any Units to be offered hereunder will consist of one or more
Securities.
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ii
PROSPECTUS
AMERADA HESS CORPORATION
DEBT SECURITIES
WARRANTS
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
PURCHASE CONTRACTS
UNITS
We may offer and sell, from time to time, one or any combination of the
securities we describe in this prospectus. The debt securities may be
convertible into or exchangeable for our common stock or our other securities,
or debt or equity securities of one or more other entities. When we offer
securities, we will provide you with a prospectus supplement describing the
terms of the specific issue of securities including the offering price of the
securities.
You should read this prospectus and the prospectus supplement relating to
the specific issue of securities carefully before you invest.
We may offer and sell these securities to or through one or more
underwriters, dealers or agents, or directly to purchasers, on a continuous or
delayed basis.
Our common stock is listed on the New York Stock Exchange under the symbol
"AHC." Any common stock sold pursuant to a prospectus supplement will be listed,
subject to notice of issuance, on the New York Stock Exchange. If we decide to
list or seek a quotation for any other securities we may offer and sell from
time to time, the prospectus supplement relating to those securities will
disclose the exchange or market on which those securities will be listed or
quoted.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is March 1, 2006.
Table of Contents
ABOUT THIS PROSPECTUS..........................................................3
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS...........................3
WHERE YOU CAN FIND MORE INFORMATION............................................3
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE................................3
OUR COMPANY....................................................................4
USE OF PROCEEDS................................................................5
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS...................................5
DESCRIPTION OF SECURITIES WE MAY OFFER.........................................5
DEBT SECURITIES................................................................5
WARRANTS......................................................................14
COMMON STOCK..................................................................16
PREFERRED STOCK...............................................................17
DEPOSITARY SHARES.............................................................21
PURCHASE CONTRACTS............................................................24
UNITS.........................................................................25
VALIDITY OF THE SECURITIES....................................................27
EXPERTS.......................................................................27
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, or SEC, using a "shelf" registration
process. Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings. This prospectus provides
you with a general description of the securities we may offer. Each time we
offer to sell any of the securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering and the
securities being offered. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read this prospectus
and the applicable prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information."
In this prospectus, the terms "we," "us," "our," the "Company" and "Hess"
refer to Amerada Hess Corporation and its direct and indirect subsidiaries, as
the context requires.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains a number of forward-looking statements, within the
meaning of the Private Securities Litigation Reform Act of 1995. Words such as
"expect(s)", "feel(s)", "believe(s)", "will", "may", "anticipate(s)",
"estimate(s)", "should", "intend(s)" and similar expressions are intended to
identify forward-looking statements. Such statements are subject to known and
unknown risks and uncertainties that could cause actual results to differ
materially from those projected. Integrated energy companies are exposed to
commodity risks related to the change in price of crude oil, natural gas,
refined products and electricity, as well as to changes in interest rates,
foreign currency values, tax rates and government regulations.
You are cautioned not to place undue reliance on these forward-looking
statements that are only as of the date hereof.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy this information at the SEC's
Public Reference Room, 100 F Street, N.E. Washington, D.C. 20549. You may obtain
information on the operation of the SEC's Public Reference Room by calling the
SEC at 1-800-SEC-0330. The SEC also maintains an Internet worldwide web site
that contains reports, proxy and information statements and other information
about issuers, like us, that file electronically with the SEC. The address of
that site is http://www.sec.gov.
You should also be able to inspect reports, proxy statements and other
information about us at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
We have filed a registration statement on Form S-3 with the SEC covering
the securities that may be sold under this prospectus. For further information
on us and the securities, you should refer to our registration statement and its
exhibits. This prospectus summarizes material provisions of contracts and other
documents that we refer you to. Because the prospectus may not contain all the
information that you may find important, you should review the full text of
these documents.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" into this prospectus
information contained in documents that we file with them, which means that we
can disclose important information to you by referring you to those documents.
The information incorporated by reference is an important part of this
prospectus, and information that we file later with the SEC will automatically
update and supersede this information. We also specifically incorporate by
reference the following documents, which we have already filed with the SEC:
(i) our Annual Report on Form 10-K for the year ended December 31, 2004;
(ii) our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2005, June 30, 2005 and September 30, 2005;
(iii) our Current Reports on Form 8-K, filed on January 3 and 26, 2005;
February 4, 2005; April 27, 2005; July 27, 2005; October 26, 2005;
January 25, 2006; and February 6, 2006.
(iv) the definitive proxy statement for our 2005 annual meeting of
shareholders; and
(v) The description of our common stock contained in Appendix VII of Form
S-4, Registration No. 333-50358, filed on November 21, 2000.
In addition, we also incorporate by reference additional documents that we
may file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 after the date of this prospectus and until the termination
of this offering. These documents include periodic reports, such as Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form
8-K, as well as proxy statements. Nothing in this prospectus shall be deemed to
incorporate information furnished but not filed with the SEC pursuant to Item 2
or Item 7 of Form 8-K.
We encourage you to read our periodic and current reports. We think these
reports provide additional information about our company which prudent investors
find important. You may request a copy of these filings as well as any future
filings incorporated by reference, at no cost, by writing or telephoning us at
our principal executive offices at the following address:
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
Attention: Corporate Secretary
(212) 997-8500
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any jurisdiction where the offer or sale is not
permitted. You should not assume that the information in this prospectus or any
prospectus supplement is accurate as of any date other than the date on the
front of those documents.
OUR COMPANY
We are a global integrated energy company engaged in the exploration
for and the production, purchase, transportation and sale of crude oil and
natural gas, as well as the production and sale of refined petroleum products.
Exploration and production activities take place primarily in the United States,
the United Kingdom, Norway, Denmark, Equatorial Guinea, Algeria, Gabon,
Indonesia, Azerbaijan, Thailand, Malaysia, Libya and the Russian Federation. A
major part of our capital employed is in exploration and production and most of
our capital expenditures are spent in the exploration for, and the development
and production of, crude oil and natural gas. Our estimated proved reserves at
year end and production for the year are set forth in our most recent Annual
Report on Form 10-K filed with the SEC.
Refined petroleum products are manufactured at the HOVENSA refinery in
St. Croix, United States Virgin Islands, which is owned jointly with Petroleos
de Venezuela S.A. (PDVSA). The HOVENSA refinery, which is one of the world's
largest with a crude oil processing capacity of approximately 500,000 barrels of
oil per day (BPD), produces high-quality, clean-burning fuel oils, gasoline and
other petroleum products. We also have a 65,000 BPD fluid catalytic cracking
facility in Port Reading, New Jersey which mostly produces gasoline and heating
oil. Our strategically placed terminals provide us with extensive storage
capacity on the East Coast of the United States, through which we distribute
HESS products to customers from Massachusetts to Florida. We market refined
petroleum products to wholesale distributors, industrial and commercial users,
other petroleum companies, governmental agencies, and public utilities and to
the motoring public through approximately 1,350 HESS brand retail gasoline and
convenience store outlets.
We are a Delaware corporation. Our principal executive offices are located
at 1185 Avenue of the Americas, New York, New York 10036, and our telephone
number is (212) 997-8500.
USE OF PROCEEDS
Unless we otherwise specify in the applicable prospectus supplement, the
net proceeds we receive from the sale of the securities offered by this
prospectus and the accompanying prospectus supplement will be used for general
corporate purposes. General corporate purposes may include but are not limited
to the repayment of debt, investments in or extensions of credit to our
subsidiaries or the financing of possible acquisitions or business expansion.
The net proceeds may be invested temporarily or applied to repay short-term debt
until they are used for their stated purpose.
RATIO OF EARNINGS TO FIXED CHARGES AND RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
Our ratio of earnings to fixed charges and ratio of earnings to combined
fixed charges and preferred stock dividends for each of the five most recently
completed fiscal years and any required interim periods will each be specified
in a prospectus supplement or in a document we file with the SEC and incorporate
by reference.
We compute the ratio of earnings to fixed charges by dividing earnings by
fixed charges. For purposes of this computation, earnings are defined as income
before income taxes, plus interest expense, including amortization of debt
discount and expense related to indebtedness and an estimated interest portion
of rental expense. Fixed charges are defined as interest expense, including
amortization of debt discount and expense related to indebtedness plus an
estimated interest portion of rental expense. We compute the ratio of earnings
to combined fixed charges and preferred stock dividends by dividing earnings by
the sum of fixed charges and dividends on preferred stock.
DESCRIPTION OF SECURITIES WE MAY OFFER
DEBT SECURITIES
GENERAL
We may offer either senior debt securities or subordinated debt
securities through this prospectus. The senior and subordinated debt securities
may both be convertible into shares of our common or preferred stock. The
indentures allow us to issue senior and subordinated debt securities and
convertible debt securities from time to time up to the aggregate principal
amount we authorize from time to time. Pursuant to the terms of the indentures,
we may register additional debt securities and issue an unlimited total
principal amount of debt securities. We may issue the debt securities in one or
more series with the same or different terms. We may issue debt securities of
the same series at different times. All debt securities of the same series need
not bear interest at the same rate or mature on the same date. Each indenture
permits the appointment of a different trustee for each series of debt
securities. If there is at any time more than one trustee under the indentures,
the term `trustee' means each such trustee and will apply to each such trustee
only with respect to those series of debt securities for which it is serving as
trustee.
Except as otherwise provided in the prospectus supplement relating to
a particular series of debt securities, the indentures might not limit the
amount of other debt, secured or unsecured, that we can issue, and might not
contain financial or similar restrictive covenants. The indentures might not
contain any provision to protect holders of debt securities against a sudden or
dramatic decline in our ability to pay our debt.
The following summary of the debt securities is not complete. The
prospectus supplement will describe the particular terms of any debt
securities we may offer and may differ from the terms below.
The description will include:
o the title of the debt securities;
o whether the debt securities are senior debt securities or subordinated
debt securities;
o the total principal amount of the debt securities;
o the percentage of the principal amount at which the debt securities
will be issued;
o the date or dates on which principal will be payable and whether the
debt securities will be payable on demand on any date;
o the interest rate or rates and the method for calculating the interest
rate;
o the interest payment dates;
o the maturity dates;
o optional or mandatory redemption terms;
o any sinking fund provisions;
o authorized denominations;
o the currency in which the debt securities will be denominated;
o whether the principal and any premium or interest is payable in a
different currency than the currency in which the debt securities are
denominated, including a currency other than U.S. dollars;
o the manner in which any payments of principal and any premium or
interest will be calculated, if the payment will be based on an index
or formula;
o whether the debt securities are to be issued as individual
certificates to each holder or in the form of global securities held
by a depositary on behalf of holders or in uncertificated form;
o whether the debt securities will be issued as registered securities or
as bearer securities;
o information describing any book-entry features;
o whether and under what circumstances we will pay additional amounts on
any debt securities held by a person who is not a United States person
for tax purposes and whether we can redeem the debt securities if we
have to pay additional amounts;
o provisions, other than those already in the indentures, that allow for
the discharge of our obligations under the indentures;
o if the debt securities are convertible into shares of our common or
preferred stock, the terms and conditions upon which conversion will
be effected, including the conversion price, the conversion period and
whether conversion is mandatory, at the option of the holder or at our
option; and
o any other terms.
If interest is payable on the debt securities, the persons to which
and the manner in which the interest will be paid will be set forth in the
prospectus supplement relating to the debt securities. Unless otherwise
indicated in the applicable prospectus supplement, the debt securities will not
be listed on any securities exchange.
Some of the debt securities may be sold at a substantial discount
below their stated principal amount. These debt securities may either bear no
interest or may bear interest at a rate which at the time of issuance is below
market rates. The U.S. federal income tax consequences and other special
considerations applicable to the discounted debt securities will be described in
the prospectus supplement relating to these debt securities.
Unless the prospectus supplement for a particular series of debt
securities provides that the debt securities of that series may be redeemed at
the option of the holder, the indentures and the debt securities will not
provide for redemption at the option of a holder nor necessarily afford holders
protection in the event of a highly leveraged or other transaction that might
adversely affect holders.
COVENANTS
We may agree to some restrictions on our activities for the benefit of
holders of the debt securities. The restrictive covenants summarized below may
apply (unless the covenants are waived or amended) so long as any of the debt
securities are outstanding unless the prospectus supplement states otherwise. We
have provided a glossary at the end of this prospectus to define capitalized
terms used in the covenants. The prospectus supplement may describe different
covenants. In the covenants, all references to us, we, our and ours mean Amerada
Hess Corporation only and not any of our subsidiaries.
LIMITATION ON SECURED INDEBTEDNESS. We may agree that we will not, and
we will not permit any of our Restricted Subsidiaries to, create, assume, incur
or guarantee any Secured Indebtedness unless we secure these debt securities to
the same extent as the Secured Indebtedness. However, we may incur Secured
Indebtedness without securing these debt securities if, immediately after
incurring the Secured Indebtedness, the aggregate amount of all Secured
Indebtedness and the Attributable Debt payable under leases entered into in
connection with sale and leaseback transactions subject to the amount limitation
described below would not exceed 15% of Consolidated Net Tangible Assets. The
aggregate amount of all Secured Indebtedness in the preceding sentence excludes
Secured Indebtedness that is secured to the same extent as these debt securities
and Secured Indebtedness that is being repaid concurrently.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. We may agree that we
will not, and we will not permit any of our Restricted Subsidiaries to, enter
into any lease longer than three years covering any Principal Property of ours
or of any of our Restricted Subsidiaries that is sold to any other person in
connection with the lease, unless immediately after consummation of the sale and
leaseback transaction either:
o the sum of the Attributable Debt and the aggregate amount of all
Secured Indebtedness, excluding Secured Indebtedness which is secured
to the same extent as these debt securities or that is being repaid
concurrently, does not exceed 15% of Consolidated Net Tangible Assets;
or
o an amount equal to the net proceeds received in connection with such
sale is used within 180 days to retire or redeem indebtedness of ours
or our Restricted Subsidiaries, the proceeds are at least equal to the
fair market value of the property sold and the trustee is informed of
the transaction.
o provided, further, that, in lieu of applying all of or any part of
such net proceeds to such retirement, the Company may, within 75 days
after such sale, cancel or deliver or cause to be delivered to the
applicable trustee for cancellation either debentures or notes
evidencing indebtedness of the Company (which may include the
Securities) or of a Restricted Subsidiary previously issued or
authenticated and delivered by the applicable trustee, and not
theretofore tendered for sinking fund purposes or called for a sinking
fund or otherwise applied as a credit against an obligation to redeem
or retire such notes or debentures, and an Officers' Certificate
(which shall be delivered to the Trustee) stating that the Company
elects to deliver or cause to be delivered such debentures or notes in
lieu of retiring indebtedness as hereinabove provided.
CONSOLIDATION, MERGER OR SALE
We may agree not to consolidate with or merge into any other person or
convey or transfer substantially all of our properties and assets to any person,
unless:
o the successor is a U.S. corporation; and
o the successor corporation expressly assumes by a supplemental
indenture the due and punctual payment of the principal of and any
premium or any interest on all the debt securities and the performance
of every covenant in such indenture that we would otherwise have to
perform.
MODIFICATION OF THE INDENTURES
Under each indenture, our rights and obligations and the rights of the
holders may be modified if the holders of a majority in aggregate principal
amount of the outstanding debt securities of all series voting as a single class
affected by the modification consent. However, no modification of the principal
or interest payment terms, and no modification reducing the percentage required
for modifications, is effective against any holder without its consent.
EVENTS OF DEFAULT, NOTICE AND WAIVER
When we use the term "Event of Default" in the indentures, here are
some examples of what we mean.
Unless otherwise specified in a prospectus supplement, an Event of
Default with respect to a series of debt securities occurs if:
o we fail to pay the principal of, or any premium on, any debt security
when due;
o we fail to pay interest when due on any debt security for 30 days;
o we fail to perform any other covenant in such indenture and this
failure continues for 60 days after we receive written notice of it
from the trustee or from the holders of 25% in principal amount of the
outstanding debt securities of the series;
o we default under any other loans or similar indebtedness in an amount
in excess of $50,000,000 and that default results in the acceleration
of the loan and the situation continues for a period of 20 days after
we receive written notice from the trustee or from holders of 25% of
the principal amount of the outstanding securities of such series; or
o we or a court take certain actions relating to the bankruptcy,
insolvency or reorganization of Amerada Hess Corporation for the
benefit of our creditors.
A supplemental indenture may include, or pursuant to a resolution from
our board of directors there may be added, additional Events of Default or
changes to the Events of Default described above with respect to a particular
series of debt securities. For the Events of Default applicable to a particular
series of debt securities, see the prospectus supplement relating to the series.
Under each indenture, there will not be an Event of Default if a
change in generally accepted accounting principles causes a change in our
financial statements or causes us to change our accounting practices and such
change results in us not being in compliance with one or more of our covenants.
The trustee may withhold notice to the holders of debt securities of
any default (except in the payment of principal or interest) if it considers
withholding of notice to be in the best interests of the holders. No notice of a
covenant default may be given until 30 days after the default occurs. By default
we mean any event which is an Event of Default described above or would become
an Event of Default with the giving of notice or the passage of time.
If a payment Event of Default for any series of debt securities occurs
and continues, the trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of the series may require us to repay immediately:
o the entire principal of the debt securities of the series or, if the
debt securities are original issue discount securities, the portion of
the principal described in the applicable prospectus supplement; and
o all the accrued interest.
If the default results from a failure to perform a covenant or the
acceleration of other indebtedness, the trustee or the holders of 25% in
aggregate principal amount of all debt securities may require the immediate
payment of principal and interest. If the default is in connection with an event
of bankruptcy or similar event, the principal and interest will become
immediately due and payable.
The holders of a majority of the principal amount of the debt
securities of the affected series can rescind this accelerated payment
requirement or waive any past default or Event of Default or allow us to not
comply with any provision in such indenture. However, rescission is not
permitted if there is a default in payment of principal of, or premium or
interest on, any of the debt securities of the series apart from the
acceleration itself.
Other than its duties during a default, the trustee is not obligated
to exercise any of its rights or powers under such indenture at the request,
order or direction of any holders, unless the holders offer the trustee
reasonable indemnity. If they provide this indemnity, the holders of 25% of the
principal amount of any series of debt securities may, subject to limitations,
direct the time, method and place of conducting any proceeding or any remedy
available to the trustee, or exercising any power conferred on the trustee, for
any series of debt securities.
DEFEASANCE OF THE INDENTURES AND DEBT SECURITIES
Each indenture permits us to be discharged from our obligations under
such indenture and the debt securities if we comply with the following
procedures. This discharge from our obligations is referred to in this
prospectus as defeasance.
Unless the applicable prospectus supplement states otherwise, if we
deposit with the trustee sufficient cash or U.S. government securities to pay
and discharge the principal and premium, if any, and interest, if any, to the
date of maturity on such series of debt securities then following such deposit:
o we will be deemed to have paid and discharged the entire indebtedness
on the debt securities of any series; and
o our obligations under such indenture with respect to the debt
securities of such series will cease to be in effect.
Following such defeasance, holders of the applicable debt securities
would be able to look only to the trust fund for payment of principal and
premium, if any, and interest, if any, on their debt securities.
We must deliver to the trustee a ruling by the United States Internal
Revenue Service or an opinion of counsel to the effect that the deposit and
related defeasance would not cause the holders of the debt securities to
recognize income, gain or loss for federal income tax purposes.
CONCERNING THE TRUSTEES
Except during the continuance of an event of default, each of the
trustees will perform only those duties that are specifically set forth in such
trustees' respective indenture. During the continuance of any event of default
under either of the indentures, the trustee thereunder will exercise its rights
and powers under the indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use his rights under the
circumstances in the conduct of his own affairs.
PAYMENT AND TRANSFER
We will normally issue the debt securities only in book-entry form,
which means that they will be represented by one or more permanent global
certificates registered in the name of The Depository Trust Company, New York,
New York ("DTC"), or its nominee. We will refer to this form here and in the
prospectus supplement as "book-entry only."
Alternatively, we may issue the debt securities in certificated form
registered in the name of the holder. Under these circumstances, holders may
receive certificates representing the debt securities. Debt securities in
certificated form will be issued only in increments of $1,000 and will be
exchangeable without charge except for
reimbursement of taxes or other governmental charges, if any. We will refer to
this form in the prospectus supplement as "certificated."
If we issue original issue discount debt securities, we will describe
the special United States federal income tax and other considerations of a
purchase of original issue discount debt securities in the prospectus
supplement. By "original issue discount debt securities," we mean securities
that are issued at a substantial discount below their principal amount because
they pay no interest or pay interest that is below market rates at the time of
issuance.
The following discussion pertains to debt securities that are issued
in book-entry only form.
One or more global securities would be issued to DTC or its nominee.
DTC would keep a computerized record of its participants (for example, your
broker) whose clients have purchased the debt securities. The participant would
then keep a record of its clients who purchased the debt securities. A global
security may not be transferred, except that DTC, its nominees and their
successors may transfer an entire global security to one another.
Under book-entry only, we will not issue certificates to individual
holders of the debt securities. Beneficial interests in global securities will
be shown on, and transfers of global securities will be made only through,
records maintained by DTC and its participants.
DTC has provided us with the following information. DTC is:
o a limited-purpose trust company organized under the New York Banking
Law;
o a "banking organization" within the meaning of the New York Banking
Law;
o a member of the United States Federal Reserve System;
o a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
o a "clearing agency" registered under Section 17a of the Securities
Exchange Act of 1934.
DTC holds securities that its participants deposit with DTC. DTC also
facilitates settlement among participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
participants' accounts. This eliminates the need to exchange certificates.
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
participant. The rules that apply to DTC and its participants are on file with
the SEC.
DTC is owned by a number of its participants and by The New York Stock
Exchange, Inc., The American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and
the trustee will treat DTC's nominee as the owner of the global securities for
all purposes. Accordingly, we and the trustee will have no direct responsibility
or liability to pay amounts due on the securities to owners of beneficial
interests in the global securities.
It is DTC's current practice, upon receipt of any payment of principal
or interest, to credit participants' accounts on the payment date according to
their respective holdings of beneficial interests in the global securities as
shown on DTC's records as of the record date for such payment. In addition, it
is DTC's current practice to assign any consenting or voting rights to
participants whose accounts are credited with securities on a record date, by
using an omnibus proxy. Payments by participants to owners of beneficial
interests in the global securities, and voting by participants, will be governed
by the customary practices between the participants and owners of beneficial
interests, as is the case with debt securities held for the account of customers
registered in
"street name". However, these payments will be the responsibility of the
participants and not of DTC, the trustee or us.
Debt securities represented by a global security would be exchangeable for
debt securities represented by certificates with the same terms in authorized
denominations only if:
o DTC notifies us that it is unwilling or unable to continue as
depository or if DTC ceases to be a clearing agency registered under
applicable law; or
o we instruct the trustee that the global security is now exchangeable;
or
o an event of default has occurred and is continuing.
GOVERNING LAW
The debt securities and the indentures under which they will be issued
are governed by the laws of the State of New York.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
General
We may issue subordinated debt securities under the subordinated debt
indenture. Holders of subordinated debt securities should recognize that
contractual provisions in that indenture may prohibit us from making payments on
these securities. The subordinated debt securities may rank on an equal basis
with certain other subordinated debt of ours that may be outstanding from time
to time and will rank junior to all senior indebtedness (as defined below or may
be defined in the indenture) of ours (including any senior debt securities) that
may be outstanding from time to time.
If we issue subordinated debt securities, the aggregate principal
amount of senior indebtedness outstanding as of a recent date will be set forth
in the applicable prospectus supplement. The indenture does not restrict the
amount of senior indebtedness that we may incur.
Subordination
The payment of the principal of, and premium, if any, and interest on
the subordinated debt securities is expressly subordinated, to the extent and in
the manner set forth in the subordinated debt indenture, in right of payment to
the prior payment in full of all of our senior indebtedness. The term senior
indebtedness is defined in the indenture as indebtedness we incur for money
borrowed, all deferrals, renewals or extensions of any such indebtedness and all
evidences of indebtedness issued in exchange for any such indebtedness unless
such indebtedness provides that is not senior indebtedness. Senior indebtedness
also includes our guarantees of the foregoing items of indebtedness for money
borrowed by persons other than us, unless, in any such case, such indebtedness
or guarantee provides by its terms that it will not constitute senior
indebtedness.
The subordinated debt indenture provides that, unless all principal of
and any premium or interest on, the senior indebtedness has been paid in full,
or provision has been made to make these payments in full, no payment or other
distribution may be made with respect to the subordinated indebtedness in the
following circumstances:
o any acceleration of the principal amount due on the subordinated
debt securities;
o the dissolution or winding-up or total or partial liquidation or
reorganization of Amerada Hess Corporation, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other
proceedings;
o a default in the payment of principal, premium, if any, sinking
fund or interest with respect to any senior indebtedness; or
o an event of default (other than a default in the payment of
principal, premium, if any, sinking funds or interest) with
respect to any senior indebtedness, as defined in the instrument
under which the same is outstanding, permitting the holders of
senior indebtedness to accelerate its maturity, and such event of
default has not been cured or waived.
A merger, consolidation or conveyance of all or substantially all of
our assets on the terms and conditions provided in the indenture will not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of these subordination provisions.
If the holders of subordinated securities receive any payment or
distribution of our assets not permitted by the subordination provisions, the
holders of subordinated debt securities will have to repay such amount to the
holders of the senior debt securities or to the trustee.
Subrogation
After the payment in full of all senior indebtedness, the holders of
the subordinated debt securities will be subrogated to the rights of the holders
of senior indebtedness to receive payments or distributions of our assets or
securities applicable to the senior indebtedness until the subordinated debt
securities are paid in full. Under these subrogation provisions, no payments or
distributions to the holders of senior indebtedness which otherwise would have
been payable or distributable to holders of the subordinated debt securities
will be deemed to be a payment by us to or on the account of the senior
indebtedness. These provisions of the indenture are intended solely for the
purpose of defining the relative rights of the holders of the subordinated debt
securities and the holders of the senior debt securities. Nothing contained in
the indenture is intended to impair our absolute obligation to pay the principal
of and interest on the subordinated debt securities in accordance with their
terms or to affect the relative rights of the holders of the subordinated debt
securities and our creditors other than the holders of the senior indebtedness.
These subrogation provisions of the indenture will not prevent the holder of any
subordinated debt security from exercising all remedies otherwise permitted by
applicable law upon default of such security, subject to the rights of
subordination described above.
PROVISIONS APPLICABLE SOLELY TO CONVERTIBLE DEBT SECURITIES
General
The following provisions may apply to senior debt or subordinated debt
securities that will be convertible into our common stock or preferred stock,
unless otherwise provided in the prospectus supplement relating to the specific
issue of debt securities. In the case of subordinated debt securities, these
provisions are in addition to any provisions that apply because the debt
securities are subordinated. The holder of any convertible debt securities will
have the right, exercisable at any time during the time period specified in the
applicable prospectus supplement, unless previously redeemed, to convert the
convertible debt securities into shares of our common stock or preferred stock
at the conversion rate and upon the terms specified in the applicable prospectus
supplement. The holder of convertible debt securities may convert any portion
thereof which is $1,000 or any integral multiple of $1,000. In the case of
convertible debt securities called for redemption, conversion rights will expire
at the close of business on the date fixed for the redemption, except that, in
the case of redemption at the option of the holder, if applicable, the
conversion right will terminate upon receipt of written notice of the exercise
of the option.
Adjustment
For each series of convertible debt securities, the conversion price
or rate will be subject to adjustment as contemplated in the new indenture.
Unless otherwise provided in the applicable prospectus supplement, these
adjustments may occur as a result of:
o our issuance of shares of common stock as a dividend;
o subdivisions and combinations of our common stock;
o the issuance to all holders of our common stock of rights or warrants
entitling holders to subscribe for or purchase our shares at a price
per share less than the market price at the time of issuance; and
o the distribution to all holders of our common stock of:
o shares of our capital stock other than our common stock;
o evidences of indebtedness or assets other than cash dividends
paid from retained earnings and dividends payable in common stock
referred to above; or
o subscription rights or warrants other than those referred to
above.
In any case no adjustment of the conversion price or rate will be
required unless an adjustment would require a cumulative increase or decrease of
at least 1% in such price or rate. We will not issue any fractional shares of
our common stock upon conversion, but, instead, we will pay a cash adjustment.
If indicated in the applicable prospectus supplement, convertible debt
securities convertible into our common stock which are surrendered for
conversion between the record date for an interest payment, if any, and the
interest payment date, other than convertible debt securities called for
redemption on a redemption date during that period, must be accompanied by
payment of an amount equal to interest which the registered holder is entitled
to receive. We may, from time to time, reduce the conversion price by any amount
for a period of not less than 20 days, provided that the reduced price is not
less than the par value of a share of common stock.
We will determine the adjustment provisions for convertible debt
securities at the time of issuance of each series of convertible debt
securities. These adjustment provisions will be described in the applicable
prospectus supplement.
Other Purchasers
Except as set forth in the applicable prospectus supplement, any
convertible debt securities called for redemption, unless surrendered for
conversion on or before the close of business on the redemption date, are
subject to being purchased from the holder of the convertible debt securities by
one or more investment banking firms or other purchasers who may agree with us
to purchase our convertible debt securities and convert them into common stock
or preferred stock, as the case may be.
Subordination
Our obligation to make payment on account of the principal of, and
premium, if any, and interest on subordinated debt securities that are converted
into convertible debt securities may be subordinated and junior in right of
payment to our senior obligations, as described above under the heading
"Provisions Applicable Solely to Subordinated Debt Securities" and in the
prospectus supplement.
GLOSSARY
We have used the following definitions in describing the restrictive
covenants that we have agreed to in the indentures. You can also find the
precise legal definitions of these terms in Section 1.01 of each indenture.
"Attributable Debt" means, when used in connection with a sale and
lease-back transaction referred to in the indenture, on the date upon which the
amount is to be determined, the product of
o the net proceeds from the sale and lease-back transaction multiplied
by
o a fraction, the numerator of which is the number of full years of the
term of the lease relating to the property involved in that sale and
lease-back transaction (without regard to any options to renew or
extend such term) remaining on that date and the denominator of which
is the number of full years on the term of that lease measured from
the first day of the term.
"Consolidated Net Tangible Assets" means our total assets and those of
our consolidated subsidiaries, less current liabilities and intangible assets.
"Principal Property" means any oil or gas producing property, onshore
or offshore, or any refining or manufacturing plant owned or leased under a
capital lease by us or any of our Restricted Subsidiaries, but does not include
any property that has been determined by a resolution of our board of directors
not to be of material importance to the business conducted by us and our
subsidiaries taken as a whole.
"Restricted Subsidiary" means any Subsidiary that owns or leases under
a capital lease any Principal Property.
"Secured Indebtedness" means indebtedness of ours or any Restricted
Subsidiary for borrowed money secured by any lien on (or in respect of any
conditional sale or other title retention agreement covering) any Principal
Property or the stock or indebtedness of a Restricted Subsidiary, but excluding
from such definition all indebtedness:
o secured by liens (or arising from conditional sale or other title
retention agreements) existing on the date of the indenture;
o owing to us or any other Restricted Subsidiary;
o secured by liens on Principal Property or the stock or indebtedness of
Restricted Subsidiaries and existing at the time of acquisition
thereof;
o in connection with industrial development bond, pollution control
revenue bond or similar financings;
o secured by purchase money security interests;
o secured by liens existing at the time a corporation becomes a
Restricted Subsidiary;
o statutory liens, liens made in connection with bids and other standard
exempted liens;
o in connection with liens on oil or gas properties or other mineral
interests arising as a security in connection with conducting certain
business;
o in connection with royalties and other payments to be paid out of
production from oil or gas properties or other mineral interests from
the proceeds from their sale; and
o in connection with any replacement, extension or renewal of any such
indebtedness to the extent such indebtedness is not increased.
"Subsidiary" means, with respect to any person, any corporation,
association or other business entity of which more than 50% of the outstanding
voting equity is owned, directly or indirectly, by such person and one or more
other subsidiaries of such person.
WARRANTS
GENERAL
The following is a summary of material provisions of the warrants that
we may issue pursuant to one or more separate warrant agreements, either
independently or together with other securities. This summary does not include
all of the provisions of the warrants. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us and a warrant
agent. The warrant agent will act solely as our agent in connection with the
warrants of such series and will not assume any obligation or relationship of
agency or trust for
or with any holders or beneficial owners of warrants. We urge you to read the
form of warrant agreement filed in connection with the applicable prospectus
supplement. The terms of the warrants to subscribe for our debt securities
include those stated in the forms of warrant agreements. Provisions of the forms
of warrant agreements or terms defined in the forms of warrant agreements
summarized below are incorporated into this prospectus by reference.
We may issue warrants for the purchase of:
o debt securities,
o preferred stock, or
o common stock.
The warrants may be issued in one or more series. Please refer to the
prospectus supplement relating to particular series of warrants for specific
terms of the warrants, including the following terms:
o the type and number of warrants;
o the name, amount and terms of the securities for which the warrants
may be exercised;
o if applicable, the name and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security;
o the expiration date of the warrants;
o the period during which warrants may be exercised;
o the exercise price of the warrants;
o the minimum or maximum amount of the warrants that may be exercised at
any one time;
o any mandatory or optional call provisions;
o the identity of the warrant agent;
o a discussion of certain Federal income tax considerations; and
o any other terms of the warrants offered thereunder.
The warrants will be represented by warrant certificates. We will pay
all stamp taxes and any other duties to which the original issuance of the
warrant certificates may be subject.
TRANSFER AND EXCHANGE
Warrants may be transferred or exchanged pursuant to procedures
outlined in the applicable warrant agreement. No service charge will be made for
registration or transfer or exchange upon surrender of any warrant certificate
at the office of the applicable warrant agent maintained for that purpose. We
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 warrant certificates.
No warrant or warrant certificate will entitle the holder thereof to
any of the rights of a holder of the security for which the warrant may be
exercised, including the right to receive payments of principal or interest on
debt securities or to enforce any of the covenants in any indenture relating to
debt securities or the right to receive dividends on common or preferred stock
or vote with common or preferred stock.
EXERCISE OF WARRANTS
In order to exercise warrants, the holder of the warrants will be
required to surrender to the warrant agent the related warrant certificate and
pay in full the exercise price for the securities to be subscribed for upon such
exercise. The exercise price must be paid in cash or by certified or official
bank check or by wire transfer to an account we designate for such purpose. The
warrant agent then will deliver the applicable securities to the holder, and
will issue a new warrant certificate for any warrants not exercised.
AMENDMENT OF WARRANT AGREEMENT
From time to time, we and the warrant agent under the relevant warrant
agreement, may amend or supplement the warrant agreement for certain purposes
without the consent of the holders of the warrants issued thereunder, including
to cure defects or inconsistencies or make any change that does not materially
and adversely affect the rights of any holder. Any amendment or supplement to a
warrant agreement that has a material adverse effect on the interests of the
holders of the warrants issued thereunder will require the written consent of
the holders of a majority of the outstanding warrants issued thereunder.
The written consent of each holder of the warrants affected shall be
required for any amendment that:
o increases the exercise price;
o shortens the period during which warrants may be exercised; or
o if the warrants may be redeemed at our option, reduces the price at
which the warrants may be redeemed.
COMMON STOCK
We outline below a summary of material information relating to our
common stock, including summaries of certain provisions of our restated
certificate of incorporation, as amended, and our by-laws, as amended. This
summary does not include all of the provisions of our restated certificate of
incorporation or by-laws. These statements do not purport to be complete, or to
give full effect to the provisions of statutory or common laws, and are subject
to, and are qualified in their entirety by reference to, the terms and detailed
provisions of the certificate of incorporation and of the by-laws. We urge you
to read our full certificate of incorporation and by-laws.
We are incorporated in the State of Delaware, United States and
operate in accordance with the Delaware General Corporation Law, or DGCL. The
rights of our stockholders are determined by the DGCL, the securities and other
legislation of the United States, our restated certificate of incorporation and
our by-laws. Our shares of common stock are traded on the New York Stock
Exchange. Our shares are issued in registered form. Every holder of our shares
is entitled to a share certificate. Holders of our shares are entitled, subject
to the prior rights, if any, of holders of shares of any series of preferred
stock that the board of directors may establish, to such dividends as may be
declared by our board of directors out of funds legally available for this
purpose.
ANNUAL MEETING
Annual meetings of our stockholders are held on the date designated in
accordance with our by-laws. Written notice must be mailed to each stockholder
entitled to vote not less than ten nor more than 60 days before the date of the
meeting. The presence in person or by proxy of the holders of record of a
majority of our issued and outstanding shares entitled to vote at such meeting
constitutes a quorum for the transaction of business at meetings of the
stockholders. Special meetings of the stockholders may be called for any purpose
by the board of directors and shall be called by the chairman of the board or
the secretary upon the written request, stating the purpose of such meeting, of
the holders of a majority of the outstanding shares of all classes of capital
stock entitled to vote at the meeting.
VOTING RIGHTS
The holders of our shares of common stock are entitled to one vote for
each share held of record and may vote by proxy. Except as may be otherwise
provided by applicable law, our restated certificate of incorporation or our
by-laws, all elections and all questions shall be decided by a plurality of the
votes cast by stockholders entitled to vote thereon at a duly held meeting of
stockholders at which a quorum is present.
LIQUIDATION, DISSOLUTION OR WINDING-UP
In the event of our liquidation, dissolution or winding-up, the
holders of our shares of common stock are entitled to share ratably according to
the number of shares held by them in all remaining assets available for
distribution to the holders of our shares after discharge of outstanding
liabilities and payment of such liquidation preference, if any, of any series of
preferred stock that the our board of directors may establish.
TAKEOVER PROVISIONS
Certain provisions of our restated certificate of incorporation and
by-laws may have the effect of delaying, deferring or preventing a change of
control in connection with certain extraordinary corporate transactions. An
article of the restated certificate of incorporation requires that business
combinations, which term is defined to include certain mergers, asset sales,
security issuances, recapitalizations and liquidations, involving us or any of
our subsidiaries and certain acquiring persons (namely, a person, entity or
specified group which beneficially owns or controls at least 20 per cent of our
voting stock) be approved by the holders of two-thirds of our voting stock (not
including shares held by an acquiring person with which or by or on whose behalf
a business combination is proposed) unless such business combination either:
(i) has been authorized by the board of directors prior to the time that the
acquiring person involved in such business combination became an acquiring
person, or (ii) will result in the receipt by the other stockholders of a
specified minimum amount and form of payment for their shares.
Our restated certificate of incorporation and by-laws also provide for
a board of directors divided as nearly equally as possible into three classes.
Each class is elected to a term expiring at the annual meeting of stockholders
held in the third year following the year of such election. In addition, the
restated certificate of incorporation and the by-laws require (i) approval of
holders of 80 per cent of the voting stock to remove directors or to amend,
alter or repeal the provisions as to the classified board and other related
provisions, (ii) advance notice of, and a specified procedure for, shareholder
nominations for director, (iii) the taking of stockholder action only at annual
or special meetings (to be called only by the chairman of the board, the
President or a majority of the board of directors) and prohibiting stockholder
action by written consent, and (iv) the filling of vacancies on the board by
remaining directors, though less than a quorum. Such provisions of the restated
certificate of incorporation and the by-laws may make it more difficult for a
person or entity to acquire and exercise control of the company and remove
incumbent directors and officers.
OTHER RIGHTS
Holders of our shares of common stock have no pre-emption, redemption,
conversion or other subscription rights.
PREFERRED STOCK
GENERAL
The following description sets forth certain general terms of the
preferred stock and any related depositary shares that we may issue. The terms
of any series of the preferred stock and any related depositary shares will be
described in the applicable prospectus supplement relating to the preferred
stock and any related depositary shares being offered. The description set forth
below and in any prospectus supplement is not complete, and is subject to, and
qualified in its entirety by reference to, our restated certificate of
incorporation, as amended, and the
certificate of designations relating to each particular series of the preferred
stock and any related depositary shares, which was or will be filed with the SEC
at or before the issuance of the series of preferred stock.
TERMS OF THE PREFERRED STOCK
Under our restated certificate of incorporation, we are authorized to
issue up to 20,000,000 shares of preferred stock, par value $1.00 per share. Our
board of directors has the authority, without approval of the stockholders, to
issue all of the shares of preferred stock which are currently authorized in one
or more series and to fix the number of shares and the rights, preferences,
privileges, qualifications, restrictions and limitations of each series.
The applicable prospectus supplement will describe the terms of each
series of preferred stock, including, where applicable, the following:
o the designation, stated value, liquidation preference and number of
shares offered;
o the offering price or prices;
o the dividend rate or rates, or method of calculation, the dividend
periods, the dates on which dividends shall be payable and whether
dividends are cumulative or non-cumulative and, if cumulative, the
dates from which dividends begin to cumulate;
o any redemption or sinking fund provisions;
o any conversion or exchange provisions;
o any voting rights;
o whether the preferred stock will be issued in certificated or
book-entry form;
o whether the preferred stock will be listed on a national securities
exchange;
o information with respect to any book-entry procedures; and
o any additional rights, preferences, privileges, limitations and
restrictions of the preferred stock which are not inconsistent with
the provisions of the restated certificate of incorporation.
The preferred stock will be, when issued against payment, fully paid
and non-assessable. Holders will have no preemptive rights to subscribe for any
additional securities which we may issue. Unless otherwise specified in the
applicable prospectus supplement, the shares of each series of preferred stock
will rank equally with all other outstanding series of preferred stock issued by
us as to payment of dividends, other than with respect to cumulation of
dividends, and as to the distribution of our assets upon liquidation,
dissolution, or winding up. Each series of preferred stock will rank senior to
the common stock, and any other stock of ours that is expressly made junior to
that series of preferred stock.
Unless otherwise specified in the applicable prospectus supplement,
The Bank of New York will be the transfer agent, dividend disbursing agent and
registrar for the shares of the preferred stock.
DIVIDENDS AND DISTRIBUTIONS
Holders of shares of the preferred stock will be entitled to receive,
as, if and when declared by our board of directors, or a duly authorized
committee of our board of directors, out of funds legally available for the
payment of dividends, cash dividends at the rate set forth in, or calculated in
accordance with the formula set forth in, the prospectus supplement relating to
the preferred stock being offered.
Dividends on the preferred stock may be cumulative or non-cumulative
as provided in the applicable prospectus supplement. Dividends on the cumulative
preferred stock will accumulate from the date of original issue and will be
payable in arrears on the dates specified in the applicable prospectus
supplement. If any date so specified as a dividend payment date is not a
business day, declared dividends on the preferred stock will be paid on the
immediately succeeding business day, without interest. The applicable prospectus
supplement will set forth the applicable dividend period with respect to a
dividend payment date. If our board of directors, or a duly authorized committee
of our board of directors, fails to declare a dividend on any series of
non-cumulative preferred stock for any dividend period, we will have no
obligation to pay a dividend for that period, whether or not dividends on that
series of non-cumulative preferred stock are declared for any future dividend
period. Unless otherwise specified in the applicable prospectus supplement,
dividends on the preferred stock will be payable to record holders as they
appear on our stock books on each record date, not more than 30 nor less than 15
days preceding the applicable payment date, as shall be fixed by our board of
directors or a duly authorized committee of our board of directors.
No dividends will be declared or paid or set apart for payment on the
preferred stock of any series ranking, as to dividends, equally with or junior
to any other series of preferred stock for any period unless dividends have been
or are contemporaneously declared and paid or declared and a sum sufficient for
the payment of those dividends has been set apart for, in the case of the
cumulative preferred stock, all dividend periods terminating on or before the
date of payment of full cumulative dividends, or in the case of non-cumulative
preferred stock, the immediately preceding dividend period.
When dividends are not paid in full upon any series of preferred
stock, and any other preferred stock ranking equally as to dividends with that
series of preferred stock, all dividends declared upon shares of that series of
preferred stock and any other preferred stock ranking equally as to dividends
will be declared pro rata so that the amount of dividends declared per share on
that series of preferred stock and any other preferred stock ranking equally as
to dividends per share on the shares of that series of preferred stock and the
other preferred stock bear to each other. In the case of non-cumulative
preferred stock, any accrued dividends described in the immediately preceding
paragraph will not include any accumulation in respect of unpaid dividends for
prior dividend periods.
Except as provided in the immediately preceding paragraph, unless full
dividends on all outstanding shares of any series of preferred stock have been
declared and paid, in the case of a series of cumulative preferred stock, for
all past dividend periods, or in the case of non-cumulative preferred stock, for
the immediately preceding dividend period, then:
o we may not declare dividends or pay or set aside for payment or other
distribution on any of our capital stock ranking junior to or equally
with that series of preferred stock as to dividends or upon
liquidation, other than dividends or distributions paid in shares of,
or options, warrants or rights to subscribe for or purchase shares of,
our common stock or our other capital stock ranking junior to that
series of preferred stock as to dividends and upon liquidation, and
o other than in connection with the distribution or trading of any of
our capital stock, we may not redeem, purchase or otherwise acquire
any of our capital stock ranking junior to or equally with that series
of preferred stock as to dividends or upon liquidation, for any
consideration or any moneys paid to or made available for a sinking
fund for the redemption of any shares of any of our capital stock,
except by conversion or exchange for our capital stock ranking junior
to that series of preferred stock as to dividends and upon
liquidation.
Unless otherwise specified in the applicable prospectus supplement,
the amount of dividends payable for any period shorter than a full dividend
period shall be computed on the basis of twelve 30-day months, a 360-day year
and the actual number of days elapsed in any period of less than one month.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding
up of us, the holders of the preferred stock will have preference and priority
over our common stock and any other class of our stock ranking junior to the
preferred stock upon liquidation, dissolution or winding up, for payments out of
or distributions of our
assets or proceeds from any liquidation, whether from capital or surplus, of the
amount per share set forth in the applicable prospectus supplement plus all
accrued and unpaid dividends, whether or not earned or declared, to the date of
final distribution to such holders. After any liquidating payment, the holders
of preferred stock will be entitled to no other payments. If, in the case of any
liquidation, dissolution or winding up of us, our assets or the proceeds from
any liquidation should be insufficient to make the full liquidation payment in
the amount per share set forth in the applicable prospectus supplement relating
to a series of preferred stock, plus all accrued and unpaid dividends on that
preferred stock, and liquidating payments on any other preferred stock ranking
as to liquidation, dissolution or winding up equally with that preferred stock,
then any assets and proceeds will be distributed among the holders of the
preferred stock and any other preferred stock ratably in accordance with the
respective amounts which would be payable on those shares of preferred stock and
any other preferred stock if all amounts payable were paid in full. In the case
of non-cumulative preferred stock, accrued and unpaid dividends will not include
cumulation of unpaid dividends from prior dividend periods. A consolidation or
merger of us with one or more corporations will not be deemed to be a
liquidation, dissolution or winding up, voluntary or involuntary, of us.
REDEMPTION
If specified in the prospectus supplement relating to a series of
preferred stock being offered, we may, at our option, at any time or from time
to time on not less than 30 nor more than 60 days notice, redeem that series of
preferred stock in whole or in part at the redemption prices and on the dates
set forth in the applicable prospectus supplement.
If less than all outstanding shares of a series of preferred stock are
to be redeemed, the selection of the shares to be redeemed shall be determined
by lot or pro rata as may be determined by our board of directors or a duly
authorized committee of our board of directors to be equitable. From and after
the redemption date, unless we are in default in providing for the payment of
the redemption price, dividends shall cease to accrue on the shares of that
series of preferred stock called for redemption and all rights of the holders
shall cease, other than the right to receive the redemption price.
VOTING RIGHTS
Unless otherwise described in the applicable prospectus supplement,
holders of the preferred stock will have no voting rights except as set forth
below or as otherwise required by law.
Whenever dividends payable on the preferred stock are in arrears for a
number of dividend periods, whether or not consecutive, which in the aggregate
is equivalent to six calendar quarters, the holders of outstanding shares of the
preferred stock, voting as a class with holders of shares of all other series of
preferred stock ranking equally with the preferred stock either as to dividends
or the distribution of assets upon liquidation, dissolution or winding up and
upon which like voting rights have been conferred and are exercisable, will be
entitled to vote for the election of two additional directors on the terms set
forth below. These voting rights will continue, in the case of any series of
cumulative preferred stock, until all past dividends accumulated on shares of
cumulative preferred stock are paid in full and, in the case of non-cumulative
preferred stock, until all dividends on shares of non-cumulative preferred stock
are paid in full for at least one calendar year. Upon payment in full of these
dividends, the voting rights will terminate except as expressly provided by law.
Holders of all series of preferred stock which are granted these voting rights
and which rank equally with the preferred stock will vote as a class, and,
unless otherwise specified in the applicable prospectus supplement, each holder
of the preferred stock will have one vote for each share of stock held. In the
event that the holders of shares of the preferred stock are entitled to vote as
described in this paragraph, our board of directors will be increased by two
directors, and the holders of the preferred stock will have the exclusive right
as members of that class, as outlined above, to elect two directors at the next
annual meeting of shareholders.
Upon termination of the right of the holders of the preferred stock to
vote for directors as discussed in the preceding paragraph, the term of office
of all directors then in office elected by those holders will terminate
immediately. Whenever the term of office of the directors elected by those
holders ends and the related special voting rights expire, the number of
directors will automatically be decreased to the number of directors as would
otherwise prevail.
So long as any shares of preferred stock remain outstanding, we shall
not, without the affirmative vote or consent of the holders of at least a
majority of the shares of the preferred stock outstanding at the time, voting as
a class with all other series of preferred stock ranking equally with the
preferred stock either as to dividends or the distribution of assets upon
liquidation, dissolution or winding up and upon which like voting rights have
been conferred and are exercisable, given in person or by proxy, either in
writing or at a meeting:
o issue or increase the authorized or issued amounts of, the preferred
stock or any class or series of stock ranking pari passu with
preferred stock (unless the board of directors was authorized to do so
without the consent of holders of the preferred stock at the time the
existing series was created),
and, without the approval of at least two-thirds of the shares referred to
above:
o create any class or series of stock ranking senior to the preferred
stock with respect to payment of dividends or the distribution of
assets upon liquidation, dissolution or winding up of us (unless the
board of directors was authorized to do so without the consent of
holders of the preferred stock at the time the existing series was
created); or
o amend, alter or repeal, whether by merger, consolidation or otherwise,
the provisions of our restated certificate of incorporation or the
certificate of designations of the preferred stock so as to materially
and adversely affect any right, preference, privilege or voting power
of the preferred stock or the holders of the preferred stock;
provided, however, that any increase in the amount of authorized preferred stock
or the creation and issuance, or an increase in the authorized or issued amount,
of other series of preferred stock, or any increase in the amount of authorized
shares of preferred stock, in each case ranking equally with or junior to the
preferred stock with respect to the payment of dividends and the distribution of
assets upon liquidation, dissolution or winding up of us will not be deemed to
materially and adversely affect these rights, preferences, privileges or voting
powers.
The foregoing voting provisions will not apply if all outstanding
shares of preferred stock have been redeemed or sufficient funds have been
deposited in trust to effect such a redemption which is scheduled to be
consummated within three months after the time that such rights would otherwise
be exercisable.
CONVERSION OR EXCHANGE RIGHTS
The prospectus supplement relating to a series of preferred stock that
is convertible or exchangeable will state the terms on which shares of that
series are convertible or exchangeable into common stock, another series of
preferred stock or debt securities.
DEPOSITARY SHARES
GENERAL
We may chose to offer fractional shares or some multiple of shares of
our preferred stock, rather than whole individual shares. If we decide to do so,
we will issue the preferred stock in the form of depositary shares. Each
depositary share would represent a fraction or multiple of a share of the
preferred stock and would be evidenced by a depositary receipt. We will issue
depositary shares under a deposit agreement between a depositary, which we will
appoint at our discretion, and us.
DEPOSIT AGREEMENT
We will deposit the shares of preferred stock to be represented by
depositary shares under a deposit agreement. The parties to the deposit
agreement will be:
o Amerada Hess Corporation;
o a bank or other financial institution selected by us and named in the
applicable prospectus supplement, as preferred stock depositary; and
o the holders from time to time of depositary receipts issued under that
depositary agreement.
Each holder of a depositary share will be entitled to all the rights
and preferences of the underlying preferred stock, including, where applicable,
dividend, voting, redemption, conversion and liquidation rights, in proportion
to the applicable fraction or multiple of a share of preferred stock represented
by the depositary share. The depositary shares will be evidenced by depositary
receipts issued under the deposit agreement. The depositary receipts will be
distributed to those persons purchasing the fractional or multiple shares of
preferred stock. A depositary receipt may evidence any number of whole
depositary shares.
We will file the deposit agreement, including the form of depositary
receipt, with the SEC, either as an exhibit to an amendment to the registration
statements of which this prospectus forms a part or as an exhibit to a current
report on Form 8-K. See "Where You Can Find More Information" above for
information on how to obtain a copy of the form of deposit agreement.
DIVIDENDS AND OTHER DISTRIBUTIONS
The preferred stock depositary will distribute any cash dividends or
other cash distributions received in respect of the deposited preferred stock to
the record holders of depositary shares relating to the underlying preferred
stock in proportion to the number of depositary shares owned by the holders. The
preferred stock depositary will distribute any property received by it other
than cash to the record holders of depositary shares entitled to those
distributions, unless it determines that the distribution cannot be made
proportionally among those holders or that it is not feasible to make a
distribution. In that event, the preferred stock depositary may, with our
approval, sell the property and distribute the net proceeds from the sale to the
holders of the depositary shares in proportion to the number of depositary
shares they own.
The amounts distributed to holders of depositary shares will be
reduced by any amounts required to be withheld by the preferred stock depositary
or by us on account of taxes or other governmental charges.
REDEMPTION OF PREFERRED STOCK
If we redeem preferred stock represented by depositary shares, the
preferred stock depositary will redeem the depositary shares from the proceeds
it receives from the redemption, in whole or in part, of the preferred stock.
The preferred stock depositary will redeem the depositary shares at a price per
share equal to the applicable fraction or multiple of the redemption price per
share of preferred stock. Whenever we redeem shares of preferred stock held by
the preferred stock depositary, the preferred stock depositary will redeem as of
the same date the number of depositary shares representing the redeemed shares
of preferred stock. If fewer than all the depositary shares are to be redeemed,
the preferred stock depositary will select the depositary shares to be redeemed
by lot or ratably or by any other equitable method it chooses.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed to be outstanding, and all rights of the
holders of those shares will cease, except the right to receive the amount
payable and any other property to which the holders were entitled upon the
redemption. To receive this amount or other property, the holders must surrender
the depositary receipts evidencing their depositary shares to the preferred
stock depositary. Any funds that we deposit with the preferred stock depositary
for any depositary shares that the holders fail to redeem will be returned to us
after a period of two years from the date we deposit the funds.
WITHDRAWAL OF PREFERRED STOCK
Unless the related depositary shares have previously been called for
redemption, any holder of depositary shares may receive the number of whole
shares of the related series of preferred stock and any money or other property
represented by those depositary receipts after surrendering the depositary
receipts at the corporate trust office of the preferred stock depositary, paying
any taxes, charges and fees provided for in the deposit agreement and complying
with any other requirement of the deposit agreement. Holders of depositary
shares
making these withdrawals will be entitled to receive whole shares of preferred
stock, but holders of whole shares of preferred stock will not be entitled to
deposit that preferred stock under the deposit agreement or to receive
depositary receipts for that preferred stock after withdrawal. If the depositary
shares surrendered by the holder in connection with withdrawal exceed the number
of depositary shares that represent the number of whole shares of preferred
stock to be withdrawn, the preferred stock depositary will deliver to that
holder at the same time a new depositary receipt evidencing the excess number of
depositary shares.
VOTING DEPOSITED PREFERRED STOCK
When the preferred stock depositary receives notice of any meeting at
which the holders of any series of deposited preferred stock are entitled to
vote, the preferred stock depositary will mail the information contained in the
notice to the record holders of the depositary shares relating to the applicable
series of preferred stock. Each record holder of the depositary shares on the
record date, which will be the same date as the record date for the preferred
stock, may instruct the preferred stock depositary to vote the amount of the
preferred stock represented by the holder's depositary shares. To the extent
possible, the preferred stock depositary will vote the amount of the series of
preferred stock represented by depositary shares in accordance with the
instructions it receives. We will agree to take all reasonable actions that the
preferred stock depositary determines are necessary to enable the preferred
stock depositary to vote as instructed. If the preferred stock depositary does
not receive specific instructions from the holders of any depositary shares
representing a series of preferred stock, it will vote all shares of that series
held by it proportionately with instructions received.
CONVERSION OF PREFERRED STOCK
If the prospectus supplement relating to the depositary shares says
that the deposited preferred stock is convertible into or exercisable or
exchangeable for common stock, preferred stock of another series or other
securities of Amerada Hess Corporation, the following will apply. The depositary
shares, as such, will not be convertible into or exercisable or exchangeable for
any securities of Amerada Hess Corporation. Rather, any holder of the depositary
shares may surrender the related depositary receipts to the preferred stock
depositary with written instructions to instruct us to cause conversion,
exercise or exchange of the preferred stock represented by the depositary shares
into or for whole shares of common stock, shares of another series of preferred
stock or other securities of Amerada Hess Corporation. Upon receipt of those
instructions and any amounts payable by the holder in connection with the
conversion, exercise or exchange, we will cause the conversion, exercise or
exchange using the same procedures as those provided for conversion, exercise or
exchange of the deposited preferred stock. If only some of the depositary shares
are to be converted, exercised or exchanged, a new depositary receipt or
receipts will be issued for any depositary shares not to be converted, exercised
or exchanged.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
We may amend the form of depositary receipt evidencing the depositary
shares and any provision of the deposit agreement at any time and from time to
time by agreement with the preferred stock depositary. However, any amendment
that imposes additional charges or materially and adversely alters any
substantial existing right of the holders of depositary shares will not be
effective unless the holders of at least a majority of the affected depositary
shares then outstanding approve the amendment. We will make no amendment that
impairs the right of any holder of depositary shares, as described above under
"-- Withdrawal of Preferred Stock", to receive shares of the related series of
preferred stock and any money or other property represented by those depositary
shares, except in order to comply with mandatory provisions of applicable law.
Holders who retain or acquire their depositary receipts after an amendment
becomes effective will be deemed to have agreed to the amendment and will be
bound by the amended deposit agreement.
The deposit agreement will automatically terminate if:
o all outstanding depositary shares have been redeemed or converted or
exchanged for any other securities into which they or the underlying
preferred stock are convertible or exchangeable; or
o a final distribution in respect of the preferred stock has been made
to the holders of depositary shares in connection with any
liquidation, dissolution or winding up of Amerada Hess Corporation.
We may terminate the deposit agreement at any time, and the preferred
stock depositary will give notice of that termination to the recordholders of
all outstanding depositary receipts not less than 30 days before the termination
date. In that event, the preferred stock depositary will deliver or make
available for delivery to holders of depositary shares, upon surrender of the
depositary receipts evidencing the depositary shares, the number of whole or
fractional shares of the related series of preferred stock as are represented by
those depositary shares.
CHARGES OF PREFERRED STOCK DEPOSITARY; TAXES AND OTHER GOVERNMENTAL CHARGES
We will pay the fees, charges and expenses of the preferred stock
depositary provided in the deposit agreement to be payable by us. Holders of
depositary receipts will pay any taxes and governmental charges and any charges
provided in the deposit agreement to be payable by them, including a fee for the
withdrawal of shares of preferred stock upon surrender of depositary receipts.
If the preferred stock depositary incurs fees, charges or expenses for which it
is not otherwise liable at the election of a holder of a depositary receipt or
other person, that holder or other person will be liable for those fees, charges
and expenses.
RESIGNATION AND REMOVAL OF DEPOSITARY
The preferred stock depositary may resign at any time by giving us
notice, and we may remove or replace the preferred stock depositary at any time.
REPORTS TO HOLDERS
We will deliver all required reports and communications to holders of
the preferred stock to the preferred stock depositary. It will forward those
reports and communications to the holders of depositary shares.
LIMITATION ON LIABILITY OF THE PREFERRED STOCK DEPOSITARY
The preferred stock depositary will not be liable if it is prevented
or delayed by law or any circumstances beyond its control in performing its
obligations under the deposit agreement. The obligations of the preferred stock
depositary under the deposit agreement will be limited to performance in good
faith of its duties under the agreement, and it will not be obligated to
prosecute or defend any legal proceeding in respect of any depositary shares,
depositary receipts or shares of preferred stock unless satisfactory and
reasonable protection from expenses and liability is furnished. This is called
an indemnity. The preferred stock depositary may rely upon written advice of
counsel or accountants, upon information provided by holders of depositary
receipts or other persons believed to be competent and upon documents believed
to be genuine.
FORM OF PREFERRED STOCK AND DEPOSITARY SHARES
We may issue preferred stock in book-entry form. Preferred stock in
book-entry form will be represented by a global security registered in the name
of a depositary, which will be the holder of all the shares of preferred stock
represented by the global security. Those who own beneficial interests in shares
of preferred stock will do so through participants in the depositary's system,
and the rights of these indirect owners will be governed solely by the
applicable procedures of the depositary and its participants. However,
beneficial owners of any preferred stock in book-entry form will have the right
to obtain their shares in non-global form.
PURCHASE CONTRACTS
GENERAL
We may issue purchase contracts for the purchase or sale of, or whose
cash value is determined by reference or linked to the performance, level or
value of, our common or preferred stock, debt securities, depositary shares or
other securities described in this prospectus.
We refer to each property described above as a "purchase contract
property". Each purchase contract will obligate:
o the holder to purchase or sell, and obligate us to sell or purchase,
on specified dates, one or more purchase contract properties at a
specified price or prices; or
o the holder or us to settle the purchase contract by reference to the
value, performance or level of one or more purchase contract
properties, on specified dates and at a specified price or prices.
Some purchase contracts may include multiple obligations to purchase
or sell different purchase contract properties, and both we and the holder may
be sellers or buyers under the same purchase contract. No holder of a purchase
contract will have any rights of a holder of the purchase contract property
purchasable under the contract, including any right to receive payments on that
property.
TERMS OF THE PURCHASE CONTRACTS
Your prospectus supplement may contain, where applicable, the
following information about your purchase contract:
o whether the purchase contract obligates the holder to purchase or
sell, or both purchase and sell, one or more purchase contract
properties and the nature and amount of each of those properties, or
the method of determining those amounts;
o whether the purchase contract is to be prepaid or not and the
governing document for the contract;
o whether the purchase contract is to be settled by delivery, or by
reference or linkage to the value, performance or level of, the
purchase contract properties;
o any acceleration, cancellation, termination or other provisions
relating to the settlement of the purchase contract;
o whether the purchase contract will be issued as part of a unit and, if
so, the other securities comprising the unit and whether any unit
securities will be subject to a security interest in our favor as
described below; and
o whether the purchase contract will be issued in fully registered or
bearer form and in global or non-global form.
If we issue a purchase contract as part of a unit, the accompanying
prospectus supplement will state whether the contract will be separable from the
other securities in the unit before the contract settlement date.
UNITS
GENERAL
We may issue units comprised of one or more debt securities, warrants,
purchase contracts, shares of preferred stock and depositary shares in any
combination. Each unit will be issued so that the holder of the unit is also the
holder of each security included in the unit. Thus, the holder of a unit will
have the rights and obligations of a holder of each included security. The unit
agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
The applicable prospectus supplement may describe:
o the designation and terms of the units and of the securities
comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
o any provisions of the governing unit agreement that differ from those
described here; and
o any provisions for the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the units.
GENERAL PROVISIONS OF A UNIT AGREEMENT
Enforcement of Rights
The unit agent under a unit agreement will act solely as our agent in
connection with the units issued under that agreement. The unit agent will not
assume any obligation or relationship of agency or trust for or with any holders
of those units or of the securities comprising those units. The unit agent will
not be obligated to take any action on behalf of those holders to enforce or
protect their rights under the units or the included securities.
Generally, except as described in the next paragraph, a holder of a
unit may, without the consent of the unit agent or any other holder, enforce its
rights as holder under any security included in the unit, in accordance with the
terms of that security and the indenture, warrant agreement, unit agreement or
trust agreement under which that security is issued. Those specific terms will
be described elsewhere in the applicable prospectus supplement under the
sections relating to debt securities, warrants, purchase contracts and capital
securities. Notwithstanding the foregoing, a unit agreement may limit or
otherwise affect the ability of a holder of units issued under that agreement to
enforce its rights, including any right to bring a legal action, with respect to
those units or any securities, other than debt securities, prepaid purchase
contracts, warrants issued under the warrant indenture and capital securities,
that are included in those units. Limitations of this kind will be described in
the applicable prospectus supplement.
Modification Without Consent of Holders
We and the applicable unit agent may amend any unit or unit agreement
without the consent of any holder (i) to cure any ambiguity, (ii) to correct or
supplement any defective or inconsistent provision or (iii) to make any other
change that we believe is necessary or desirable and will not adversely affect
the interests of the affected holders in any material respect.
We will not need any approval to make changes that affect only units
to be issued after the changes take effect. We may also make changes that do not
adversely affect a particular unit in any material respect, even if they
adversely affect other units in a material respect. In those cases, we do not
need to obtain the approval of the holder of the unaffected unit; we need only
obtain any required approvals from the holders of the affected units.
Modification With Consent of Holders
We generally may not amend any particular unit or a unit agreement
with respect to any particular unit unless we obtain the consent of the holder
of that unit, if the amendment would (i) impair any right of the holder to
exercise or enforce any right under a security included in the unit if the terms
of that security require the consent of the holder to any changes that would
impair the exercise or enforcement of that right, (ii) impair the right of the
holder to purchase or sell, as the case may be, the purchase contract property
under any non-prepaid purchase contract issued under the unit agreement, or to
require delivery of or payment for that property when due or (iii) reduce the
percentage of outstanding units of any series or class the consent of whose
holders is required to amend that series or class, or the applicable unit
agreement with respect to that series or class.
Any other change to a particular unit agreement and the units issued
under that agreement would require the following approval:
o If the change affects only the units of a particular series issued
under that agreement, the change must be approved by the holders of a
majority of the outstanding units of that series.
o If the change affects the units of more than one series issued under
that agreement, it must be approved by the holders of a majority of
all outstanding.
o units of all series affected by the change, with the units of all the
affected series voting together as one class for this purpose.
These provisions regarding changes with majority approval also apply
to changes affecting any securities issued under a unit agreement, as the
governing document.
VALIDITY OF THE SECURITIES
In connection with particular offerings of the securities in the future,
and if stated in the applicable prospectus supplements, the validity of those
securities may be passed upon for the Company by White & Case LLP and for any
underwriters or agents by counsel named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Amerada Hess Corporation appearing
in Amerada Hess Corporation's Annual Report (Form 10-K) for the year ended
December 31, 2004 and Amerada Hess Corporation's management assessment of the
effectiveness of internal control over financial reporting as of December 31,
2004 included therein, have been audited by Ernst & Young LLP, independent
registered public accounting firm, as set forth in their reports thereon
included therein, and incorporated herein by reference. Such financial
statements and management's assessment have been incorporated herein by
reference and included herein, respectively, in reliance upon such reports given
on the authority of such firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated fees and expenses (not including underwriting discounts and
commissions) payable by the Registrant in connection with the issuance and
distribution of the securities being registered hereby are set forth in the
following table:
SEC registration fee(1)..................................... $ ----
NASD fees(2)................................................ $ 75,500
Trustee's fees(3)........................................... $ 80,000
Printing expenses(3)........................................ $ 80,000
Rating agency fees(3)....................................... $ 500,000
Accounting fees and expenses(3)............................. $ 80,500
Legal fees and expenses (3)................................. $ 100,000
Blue Sky fees and expenses(3)............................... $ ----
Miscellaneous(3)............................................ $ 84,000
-----------
Total....................................................... $ 1,000,000
===========
- ----------
(1) Deferred in reliance upon Rules 456(b) and 457(r).
(2) Assumes maximum fee payable under NASD rules and regulations.
(3) Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Every person who is or was a director, officer or employee of the
Corporation, or of any other corporation which he serves or served as such at
the request of the Corporation, shall, in accordance with the by-laws, but not
if prohibited by law, be indemnified by the Corporation against reasonable
expense and any liability paid or incurred by him in connection with or
resulting from any threatened or actual claim, action, suit or proceeding
(whether brought by or in the right of the Corporation or such other corporation
or otherwise), civil, criminal, administrative or investigative, in which he may
be involved, as a party or otherwise, by reason of his being or having been a
director, officer or employee of the Corporation or such other corporation, or
by reason of any action taken or not taken in his capacity as such director,
officer or employee, whether or not he continues to be such at the time such
expense or liability shall have been paid or incurred.
ITEM 16. EXHIBITS.
The exhibits to this registration statement are listed in the exhibit
index, which appears elsewhere herein and is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the
registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(i) Each prospectus filed by a Registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required by Section 10(a)
of the Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be deemed to be
a new effective date of the registration statement relating to the
securities in the registration statement to which the prospectus relates,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus
that is part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document
immediately prior to such effective date.
(5) That, for the purpose of determining liability of a Registrant under
the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned Registrant undertakes that in a primary offering of
securities of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to
the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell such securities
to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed pursuant to
Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned Registrant or used or referred to by the
undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned Registrant
or its securities provided by or on behalf of the undersigned Registrant;
and
(iv) Any other communication that is an offer in the offering made by
the undersigned Registrant to the purchaser.
(6) The undersigned Registrant hereby further undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(7) The undersigned Registrant hereby further undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by a Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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 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 New York, State of New York, on March 1, 2006.
AMERADA HESS CORPORATION
BY: /s/ John P. Rielly
-------------------------
Name: John P. Rielly
Title: Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
J. Barclay Collins II and John P. Rielly and each of them, 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, in any and all
capacities, to sign any and all amendments to this Registration Statement
(including post-effective amendments) and any related registration statements
filed pursuant to Rule 462(b) under the Securities Act of 1933, and to file the
same, with all exhibits thereto, and other documents in connection therewith
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and to perform each and every act and thing requisite and necessary to be done
in and about the premises, as fully and to all intents and purposes as he might
or would do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
NAME POSITION DATE
- ------------------------------- -------------------------------- -------------
/s/ John B. Hess Chairman of the Board and March 1, 2006
- ---------------- Chief Executive Officer
(John B. Hess) [Principal Executive Officer]
/s/ Nicholas F. Brady Director March 1, 2006
- ---------------------
(Nicholas F. Brady)
/s/ J. Barclay Collins II Executive Vice President March 1, 2006
- ------------------------- General Counsel and Director
(J. Barclay Collins II)
/s/ Edith E. Holiday Director March 1, 2006
- --------------------
(Edith E. Holiday)
NAME POSITION DATE
- ------------------------------- -------------------------------- -------------
/s/ Thomas H. Kean Director March 1, 2006
- ------------------
(Thomas H. Kean)
/s/ Dr. Risa Lavizzo-Mourey Director March 1, 2006
- ---------------------------
(Dr. Risa Lavizzo-Mourey)
/s/ Craig G. Matthews Director March 1, 2006
- ---------------------
(Craig G. Matthews)
/s/ John J. O'Connor Executive Vice President and March 1, 2006
- -------------------- Director
(John J. O'Connor)
/s/ Frank A. Olson Director March 1, 2006
- ------------------
(Frank A. Olson)
/s/ F. Borden Walker Director March 1, 2006
- --------------------
(F. Borden Walker)
/s/ Ernst H. von Metzsch Director March 1, 2006
- ------------------------
(Ernst H. von Metzsch)
/s/ Robert N. Wilson Director March 1, 2006
- --------------------
(Robert N. Wilson)
/s/ John P. Rielly Senior Vice President and March 1, 2006
- ------------------ Chief Financial Officer
(John P. Rielly) [Principal Financial Officer and
Principal Accounting Officer]
EXHIBIT INDEX
Exhibit
Number Description of Documents
- ----------- ------------------------------------------------------------------
1 Form of Underwriting Agreement (incorporated by reference
to Exhibit 1 of Amerada Hess Corporation's Registration
Statement on Form S-3, Registration No. 333-79317)
3 By-laws (incorporated by reference to Exhibit 3 of Amerada Hess
Corporation's Quarterly Report on Form 10-Q filed August 7, 2002)
3.1 Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3 of Amerada Hess Corporation's Registration
Statement on Form S-3, Registration No. 333-110294)
4 Indenture, dated as of March 1, 2006, between the Amerada Hess
Corporation and JPMorgan Chase Bank, N.A., as Trustee, including
form of Note
4.1 Indenture, dated as of March 1, 2006, between Amerada Hess
Corporation and the JPMorgan Chase Bank, N.A., as Trustee,
including form of Note
4.2 Form of Warrant Agreement for Warrants Sold Alone (incorporated by
reference to Exhibit 4 of Amerada Hess Corporation's Registration
Statement on Form S-3, Registration No. 333-110294)
4.3 Form of Warrant Agreement for Warrants Sold Attached to Securities
(incorporated by reference to Exhibit 4 of Amerada Hess
Corporation's Registration Statement on Form S-3,
Registration No. 333-110294)
4.4 Form of Depositary Agreement, including form of depositary receipt
(to be filed as an exhibit to a current report on Form 8-K and
incorporated herein by reference)
4.5 Form of Unit Agreement, including form of unit certificate (to be
filed as an exhibit to a current report on Form 8-K and
incorporated herein by reference)
4.6 Form of Unit Agreement Without Holders' Obligation (to be filed as
an exhibit to a current report on Form 8-K and incorporated herein
by reference)
4.7 Form of Prepaid Purchase Contract (to be filed as an exhibit to a
current report on Form 8-K and incorporated herein by reference)
5 Opinion of White & Case LLP as to the legality of the Offered
Securities
12 Computation of Ratio of Earnings to Fixed Charges and of Combined
Fixed Charges and Preference Dividends to Earnings*
23 Consent of Ernst & Young LLP
23.1 Consent of White & Case LLP (included in Exhibit 5)
24 Power of Attorney (included in Part II of this Registration
Statement)
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of JPMorgan Chase Bank, as trustee under the indentures dated
as of March 1, 2006
* To be filed by amendment
EXHIBIT 4
================================================================================
AMERADA HESS CORPORATION
AS THE COMPANY
AND
JPMORGAN CHASE BANK, N.A.
AS TRUSTEE
INDENTURE
DATED AS OF MARCH 1, 2006
================================================================================
Table of Contents
Page
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...........................1
SECTION 1.01. Definitions................................................1
SECTION 1.02. Other Definitions..........................................6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..........6
SECTION 1.04. Rules of Construction......................................7
ARTICLE 2 THE SECURITIES.......................................................7
SECTION 2.01. Form and Dating............................................7
SECTION 2.02. Execution and Authentication...............................7
SECTION 2.03. Amount Unlimited; Issuable in Series.......................9
SECTION 2.04. Denomination and Date of Securities; Payments of
Interest.................................................11
SECTION 2.05. Registrar and Paying Agent; Agents Generally..............12
SECTION 2.06. Paying Agent to Hold Money in Trust.......................12
SECTION 2.07. Transfer and Exchange.....................................13
SECTION 2.08. Replacement Securities....................................15
SECTION 2.09. Outstanding Securities....................................16
SECTION 2.10. Temporary Securities......................................16
SECTION 2.11. Cancellation..............................................17
SECTION 2.12. CUSIP Numbers.............................................17
SECTION 2.13. Defaulted Interest........................................17
SECTION 2.14. Series May Include Tranches...............................17
ARTICLE 3 REDEMPTION..........................................................18
SECTION 3.01. Applicability of Article..................................18
SECTION 3.02. Notice of Redemption; Partial Redemptions.................18
SECTION 3.03. Payment of Securities Called for Redemption...............20
SECTION 3.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption.............................20
SECTION 3.05. Mandatory and Optional Sinking Funds......................21
ARTICLE 4 COVENANTS...........................................................23
SECTION 4.01. Payment of Securities.....................................23
SECTION 4.02. Maintenance of Office or Agency...........................23
SECTION 4.03. Negative Pledge...........................................24
SECTION 4.04. Certain Sale and Lease-back Transactions..................27
SECTION 4.05. Certificate to Trustee....................................28
SECTION 4.06. Reports by the Company....................................28
SECTION 4.07. Delivery of Such Reports..................................28
ARTICLE 5 SUCCESSOR CORPORATION...............................................28
SECTION 5.01. When Company May Merge, Etc...............................28
SECTION 5.02. Successor Substituted.....................................29
(i)
Table of Contents
(continued)
Page
----
ARTICLE 6 DEFAULT AND REMEDIES................................................29
SECTION 6.01. Events of Default.........................................29
SECTION 6.02. Acceleration..............................................30
SECTION 6.03. Other Remedies............................................32
SECTION 6.04. Waiver of Past Defaults...................................32
SECTION 6.05. Control by Majority.......................................32
SECTION 6.06. Limitation on Suits.......................................32
SECTION 6.07. Rights of Holders to Receive Payment......................33
SECTION 6.08. Collection Suit by Trustee................................33
SECTION 6.09. Trustee May File Proofs of Claim..........................33
SECTION 6.10. Application of Proceeds...................................34
SECTION 6.11. Restoration of Rights and Remedies........................34
SECTION 6.12. Undertaking for Costs.....................................35
SECTION 6.13. Rights and Remedies Cumulative............................35
SECTION 6.14. Delay or Omission Not Waiver..............................35
ARTICLE 7 TRUSTEE.............................................................35
SECTION 7.01. General...................................................35
SECTION 7.02. Certain Rights of Trustee.................................35
SECTION 7.03. Control by Majority.......................................37
SECTION 7.04. Trustee's Disclaimer......................................37
SECTION 7.05. Notice of Default.........................................37
SECTION 7.06. Reports by Trustee to Holders.............................38
SECTION 7.07. Compensation and Reimbursement............................38
SECTION 7.08. Replacement of Trustee....................................39
SECTION 7.09. Successor Trustee by Merger, Etc..........................40
SECTION 7.10. Eligibility...............................................40
SECTION 7.11. Money Held in Trust.......................................40
ARTICLE 8 DISCHARGE OF INDENTURE..............................................40
SECTION 8.01. Defeasance Within One Year of Payment.....................40
SECTION 8.02. Defeasance................................................41
SECTION 8.03. Covenant Defeasance.......................................42
SECTION 8.04. Application of Trust Money................................43
SECTION 8.05. Repayment to Company......................................43
SECTION 8.06. Reinstatement.............................................43
ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS.................................44
SECTION 9.01. Without Consent of Holders................................44
SECTION 9.02. With Consent of Holders...................................44
SECTION 9.03. Revocation and Effect of Consent..........................45
SECTION 9.04. Notation on or Exchange of Securities.....................46
SECTION 9.05. Trustee to Sign Amendments, Etc...........................46
(ii)
Table of Contents
(continued)
Page
----
SECTION 9.06. Conformity with Trust Indenture Act........................46
ARTICLE 10 MISCELLANEOUS......................................................47
SECTION 10.01. Trust Indenture Act of 1939...............................47
SECTION 10.02. Notices...................................................47
SECTION 10.03. Certificate and Opinion as to Conditions
Precedent................................................48
SECTION 10.04. Statements Required in Certificate or Opinion.............48
SECTION 10.05. Evidence of Ownership.....................................48
SECTION 10.06. Rules by Trustee, Paying Agent or Registrar...............49
SECTION 10.07. Payment Date Other than a Business Day....................49
SECTION 10.08. Governing Law.............................................49
SECTION 10.09. No Adverse Interpretation of Other Agreements.............49
SECTION 10.10. Successors................................................49
SECTION 10.11. Duplicate Originals.......................................50
SECTION 10.12. Separability..............................................50
SECTION 10.13. Tables of Contents, Headings, Etc.........................50
SECTION 10.14. Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability..............50
SECTION 10.15. Judgment Currency.........................................50
Exhibit A Form of Note
(iii)
INDENTURE, dated as of March 1, 2006, between AMERADA HESS
CORPORATION, a Delaware corporation, as the Company, and JPMorgan Chase Bank,
N.A., a National banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in one
or more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration thereof, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Company and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to
time of the Securities or of any and all series thereof and of the coupons, if
any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Agent" means any Registrar, Paying Agent, Transfer Agent or
Authenticating Agent.
"Attributable Debt" means, when used in connection with a sale and
lease-back transaction referred to in Section 4.04, on any date as of which the
amount thereof is to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a fraction, the numerator
of which is the number of full years of the term of the lease relating to the
property involved in such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining on the date of the making of
such computation and the denominator of which is the number of full years of the
term of such lease measured from the first day of such term.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and in the case of London, will, if practicable, be the Financial Times
(London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York or London,
as applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall constitute
a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by the
secretary or an assistant secretary to have been duly adopted and to be in full
force and effect on the date of certification, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day, other than
a Saturday or a Sunday, that is not a day on which banking institutions are
authorized or required by law or regulation to close, in the city (or in any of
the cities, if more than one) unless otherwise specified, in which amounts are
payable, as specified in the form of such Security or the city in which the
Corporate Trust Office is located.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act 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 Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Consolidated Current Liabilities" means, with respect to any Person
on any date, all amounts which, in conformity with GAAP, would be classified as
current liabilities on a consolidated balance sheet of such Person and its
consolidated subsidiaries as at such date.
"Consolidated Intangibles" means, with respect to any Person on any
date, all assets of such Person and its consolidated subsidiaries, determined on
a consolidated basis, that would, in conformity with GAAP, be classified as
intangible assets on a consolidated balance sheet of such Person and its
consolidated subsidiaries as at such date, including, without limitation,
unamortized debt discount and expense, unamortized organization and
reorganization expense, costs in excess of the fair market value of acquired
companies, patents, trade or service marks, franchises, trade names, goodwill
and the amount of all write-ups in the book value of assets resulting from any
revaluation thereof.
"Consolidated Net Tangible Assets" means, with respect to any Person
on any date, the amount equal to (a) the amount that would, in conformity with
GAAP, be included as
-2-
assets on the consolidated balance sheet of such Person and its consolidated
subsidiaries as at such date minus (b) the sum of (i) Consolidated Intangibles
of such Person at such date and (ii) Consolidated Current Liabilities of such
Person at such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 4 New York Plaza, 15th Floor, New York, New York 10004.
"Default" means any Event of Default and any event that is, or after
notice or passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "DEPOSITARY" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of this instrument.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.01
and 2.03.
"Non-U.S. Person" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of the
board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president or chief
executive officer or a vice president and (ii) by the chief financial officer,
the treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 10.04 and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act and include
(except as otherwise expressly provided in this Indenture) the statements
provided in
-3-
Section 10.04. One of the officers giving an Officers' Certificate pursuant to
Section 4.05 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the Trustee
and complying with Section 10.04. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements provided in Section
10.04, if and to the extent required thereby.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the Security.
"Principal Property" means any oil or gas producing property, onshore
or offshore, or any refining or manufacturing plant owned or leased pursuant to
a capital lease by the Company or any Subsidiary, but shall not include any such
property that has been determined by Board Resolution not to be of material
importance to the business conducted by the Company and its subsidiaries, taken
as a whole, effective as of the date such Board Resolution is adopted.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.02, and bearing the legend prescribed in Section
2.02.
"Registered Security" means any Security registered on the Security
Register.
-4-
"Responsible Officer" means, when used with respect to the Trustee,
any officer of the Trustee with direct responsibility for the administration of
this Indenture, or any other officer of the Trustee to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary which owns or is a lessee
pursuant to a capital lease of any Principal Property.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"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 an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall 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.
-5-
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
SECTION 1.02. Other Definitions. Each of the following terms is
defined in the section set forth opposite such term:
Term Section
--------------------------------- -------
Authenticating Agent 2.02
Cash Transaction 7.03
Dollars 4.02
Event of Default 6.01
Judgment Currency 10.15
Mandatory Sinking Fund Payment 3.05
Optional Sinking Fund Payment 3.05
Paying Agent 2.05
Record Date 2.04
Registrar 2.05
Required Currency 10.15
Security Register 2.05
Self-liquidating Paper 7.03
Sinking Fund Payment Date 3.05
Tranche 2.14
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"Indenture Securities" means the Securities;
"Indenture Security Holder" means a Holder or a Securityholder;
"Indenture To Be Qualified" means this Indenture;
"Indenture Trustee" or "Institutional Trustee" means the Trustee; and
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities.
-6-
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(b) words in the singular include the plural, and words in the plural
include the singular;
(c) "Herein," "Hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(d) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(e) use of masculine, feminine or neuter pronouns should not be deemed
a limitation, and the use of any such pronouns should be construed to include,
where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or with
any rules of any securities exchange or usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of the
Securities. Any form of Security approved by or pursuant to a Board Resolution
must be acceptable as to form to the Trustee, such acceptance to be evidenced by
the Trustee's authentication of Securities in that form or a certificate signed
by a Responsible Officer of the Trustee and delivered to the Company. Unless
otherwise so established, Unregistered Securities shall have coupons attached.
SECTION 2.02. Execution and Authentication. Two Officers shall execute
the Securities (other than coupons) for the Company by facsimile or manual
signature in the name and on behalf of the Company. The seal of the Company, if
any, shall be reproduced on the Securities. If an Officer whose signature is on
a Security no longer holds that office at the time the Security is
authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent acceptable to the Company (the "Authenticating Agent") to
authenticate Securities (other than
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coupons). The Authenticating Agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such Authenticating Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company to the Trustee for
authentication together with a written order of the Company to authenticate and
deliver such Securities and the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any
Securities of a series, the Trustee shall be entitled to receive prior to the
first authentication of any Securities of such series, and (subject to
Article 7) shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked:
(a) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and
terms of the Securities of that series were established;
(b) an Officers' Certificate setting forth the form or forms and terms
of the Securities, stating that the form or forms and terms of the Securities of
such series have been, or will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with this
Indenture; and
(c) an Opinion of Counsel substantially to the effect that the form or
forms and terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture and that the supplemental
indenture, to the extent applicable, and Securities have been duly authorized
and, if executed and authenticated in accordance with the provisions of this
Indenture and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of this Indenture and
would be valid and binding obligations of the Company, in each case enforceable
against the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and subject to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including without limitation (i) the possible
unavailability of specific performance, injunctive relief or any other equitable
remedy and (ii) concepts of materiality, reasonableness, good faith and fair
dealing.
The Trustee shall not be required to authenticate the Securities of
any series if the issue thereof will adversely affect the Trustee's own rights,
duties or immunities under the Securities or this Indenture.
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If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series issued in
such form and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
its custodian or pursuant to such Depositary's instructions and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant to
a Board Resolution or one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series, subject to the last sentence of
this Section 2.03,
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture and any
limitation on the ability of the Company to increase such aggregate principal
amount after the initial issuance of the Securities of that series (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities of the
series pursuant hereto);
(c) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
(d) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the
method by which such rate or rates or date or dates shall be determined;
(e) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served and notice to Holders may be
published;
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(f) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which and any of the terms
and conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(j) if other than the coin or currency in which the Securities of the
series are denominated, the coin or currency in which payment of the Principal
of or interest on the Securities of the series shall be payable or if the amount
of payments of Principal of and/or interest on the Securities of the series may
be determined with reference to an index based on a coin or currency other than
that in which the Securities of the series are denominated, the manner in which
such amounts shall be determined;
(k) if payment of the Principal of and interest on the Securities of
the series shall be payable in currency or currencies other than the currency of
the United States, the manner in which any such currency shall be valued against
other currencies in which any other Securities shall be payable;
(l) whether the Securities of the series or any portion thereof will
be issuable as Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities (with or
without coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided herein, the terms
upon which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(m) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by Non-U.S. persons 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 such additional amounts;
(n) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
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(o) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(p) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all Securities
of the series), which provisions may be in addition to, in substitution for, or
inmodification of (or any combination of the foregoing) the provisions of
Article 8;
(q) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary for
such Registered Global Security or Securities;
(r) any addition to or change in events of default or covenants with
respect to the Securities of the series; and
(s) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time and
unless otherwise provided, a series may be reopened, without the consent of any
Holder, for issuances of additional Securities of such series and such
Securities may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any such
indenture supplemental hereto and any forms and terms of Securities to be issued
from time to time may be completed and established from time to time prior to
the issuance thereof by procedures described in such Board Resolution or
supplemental indenture.
SECTION 2.04. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The 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, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by
Section 2.03.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for
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such series, in which case the provisions of Section 2.13 shall apply. The term
"Record Date" as used with respect to any interest payment date (except a date
for payment of defaulted interest) for the Securities of any series shall mean
the date specified as such in the terms of the Registered Securities of such
series established as contemplated by Section 2.03, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.05. Registrar and Paying Agent; Agents Generally. The
Company shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such. The Company may remove any Registrar or Paying Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to
such Agent as evidenced by an appropriate agency agreement entered into by the
Company and such successor Agent and delivered to the Trustee or (ii) written
notification to the Trustee that the Trustee shall serve as such Agent until the
appointment of a successor Agent in accordance with clause (i) of this proviso.
The Company or any affiliate of the Company may act as Paying Agent or
Registrar; provided that neither the Company nor an affiliate of the Company
shall act as Paying Agent in connection with the defeasance of the Securities or
the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar and Paying
Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall
make available to the Trustee ten days prior to each interest payment date and
at such other times as the Trustee may reasonably request the names and
addresses of the Holders as they appear in the Security Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than
10:00 a.m. New York City time on each due date of any Principal or interest on
any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee of any default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to
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a Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the Trustee. If
the Company or any affiliate of the Company acts as Paying Agent, it will, on or
before each due date of any Principal of or interest on any Securities,
segregate and hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such Principal or interest so becoming
due until such sum of money shall be paid to such Holders or otherwise disposed
of as provided in this Indenture, and will promptly notify the Trustee in
writing of its action or failure to act as required by this Section.
SECTION 2.07. Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.05 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with
Section 4.02, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so require, of the charges
hereinafter provided. At the option of the Holder thereof, if Unregistered
Securities of any series, maturity date, interest rate and original issue date
are issued in more than one authorized denomination, except as otherwise
established pursuant to Section 2.03, such Unregistered Securities may be
exchanged for Unregistered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 4.02, with, in the
case of Unregistered Securities that have coupons attached, all unmatured
coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided.
Registered Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder or his or her attorney duly
authorized in writing.
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The Company or the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver Registered Securities of such series
and tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and deliver,
Registered Securities of such series and tenor in any authorized denominations,
in an aggregate principal amount equal to the principal amount of such
Registered Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor in definitive
registered 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 service charge,
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(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.07 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be 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.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of the
Company or the Trustee shall be required to exchange any Unregistered Security
for a Registered Security if such exchange would result in adverse Federal
income tax consequences to the Company (such as, for example, the inability of
the Company to deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws. The Trustee and any such agent
shall be entitled to exclusively rely on an Officers' Certificate and an Opinion
of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to register
the transfer of or exchange any Security selected for redemption in whole or in
part.
SECTION 2.08. Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security of
such series and tenor and principal amount bearing a number not
contemporaneously outstanding. If required by the Trustee or the Company, an
indemnity bond must be furnished that is sufficient in the judgment of both the
Trustee and the Company to protect the Company, the Trustee and any Agent from
any loss that any of them may suffer if a Security is replaced. The Company may
charge such Holder for its expenses and the expenses of the Trustee (including
without limitation attorneys' fees and expenses) in replacing a Security. In
case any such mutilated, defaced, lost, destroyed or wrongfully taken
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Security has become or is about to become due and payable, the Company in its
discretion may pay such Security instead of issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and those described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a protected
purchaser.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds, or the Company holds in trust, on the maturity date or any
redemption date or date for repurchase of the Securities money sufficient to pay
Securities payable or to be redeemed or repurchased on such date, then on and
after such date such Securities shall cease to be outstanding and interest on
them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one
of its affiliates holds such Security, 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, Securities owned by the Company or any affiliate of
the Company 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 as to which a Responsible Officer of the Trustee has received written
notice to be so owned shall be so disregarded. Any Securities so owned which are
pledged by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate of the
Company, shall be deemed to be outstanding, if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act as owner with respect to
such Securities and that the pledgee is not the Company or an affiliate of the
Company.
SECTION 2.10. Temporary Securities. Until definitive Securities of any
series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities,
as evidenced by their execution of such temporary Securities. If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series and
tenor
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upon surrender of such temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of such series and tenor and authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
SECTION 2.11. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar, any transfer
agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel and dispose of all Securities surrendered for registration
of transfer, exchange, payment or cancellation in accordance with its customary
procedures unless the Company otherwise directs the Trustee in writing. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee shall
use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption
or exchange as a convenience to Holders and no representation shall be made as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or exchange. The Company shall promptly
notify the Trustee in writing of any changes in the "CUSIP" or "CINS" numbers.
SECTION 2.13. Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest (as may be specified in the terms thereof, established pursuant to
Section 2.03) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, whether or not such day is a Business
Day. At least 15 days before such special record date, the Company shall mail to
each Holder and to the Trustee a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "TRANCHE") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.02 (other than the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10,
3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.05 and 9.02, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed
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equally applicable to each tranche of any series of Securities in the same
manner as though originally designated a series unless otherwise provided with
respect to such series or tranche pursuant to Section 2.03. In particular, and
without limiting the scope of the next preceding sentence, any of the provisions
of such sections which provide for or permit action to be taken with respect to
a series of Securities shall also be deemed to provide for and permit such
action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect to Securities in
the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of such series at their last addresses as they shall
appear upon the Security Register. Notice of redemption to the Holders of
Unregistered Securities of any series to be redeemed as a whole or in part who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part shall
be published in an Authorized Newspaper in The City of New York or with respect
to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 days nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed or published in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with coupons attached thereto, of all coupons
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appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall identify the Securities to be redeemed and shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option 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.
At or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least
15 days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall, if requested in writing by the Company, promptly notify the
Company in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
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SECTION 3.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after such
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to such date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured coupons, if any, appertaining thereto shall be void
and, except as provided in Sections 7.11 and 8.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit under
this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with all
coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for redemption shall be
payable, in the case of Securities with coupons attached thereto, to the Holders
of the coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities of such series and tenor (with any unmatured coupons
attached), of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
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SECTION 3.05. Mandatory and Optional Sinking Funds. 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 the
Securities of any series is herein referred to as an "Optional Sinking Fund
Payment." The date on which a sinking fund payment is to be made is herein
referred to as the "Sinking Fund Payment Date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Company intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.11 to the Trustee with
such Officers' Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Company shall become unconditionally obligated to
make all the cash payments or delivery of Securities therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of the
Company, on or before any such sixtieth day, to deliver such Officer's
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the
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Company shall so request in writing with respect to the Securities of any
series), such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price thereof together with accrued interest thereon to the date
fixed for redemption. If such amount shall be $50,000 (or such lesser sum) or
less and the Company makes no such request then it shall be carried over until a
sum in excess of $50,000 (or such lesser sum) is available. The Trustee shall
select, in the manner provided in Section 3.02, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
Company) inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by either,
(a) the Company or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company. The Company (or the Trustee,
if the Company shall so request the Trustee, in writing in the name and at the
expense of the Company), shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section 3.02
(and with the effect provided in Section 3.03) for the redemption of Securities
of such series in part at the option of the Company. The amount of any sinking
fund payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
At or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for redemption
on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such Default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such Default or Event of Default, be deemed to have been
collected under Article 6 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 6.04 or
the Default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
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ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security so agree, payments of interest on, and any portion of the Principal of,
such Holder's Registered Security (other than interest payable at maturity or on
any redemption or repayment date or the final payment of Principal on such
Security) shall be made by the Paying Agent, upon receipt from the Company of
immediately available funds by 10:00 a.m., New York City time (or such other
time as may be agreed to between the Company and the Paying Agent), directly to
the Holder of such Security (by Federal funds wire transfer or otherwise) if the
Holder has delivered written instructions to the Trustee at least 15 days prior
to such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and in the
case of payments of Principal surrenders the same to the Trustee in exchange for
a Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled to
rely on the last instruction delivered by the Holder pursuant to this Section
4.01 unless a new instruction is delivered 15 days prior to a payment date. The
Company will indemnify and hold each of the Trustee and any Paying Agent
harmless against any loss, liability or expense (including attorneys' fees)
resulting from any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any payment in
accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York, as such office or
agency of the
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Company. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 10.02.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("DOLLARS") at each agency
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Company maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 4.03. Negative Pledge. (a) The Company will not, and will not
permit any Restricted Subsidiary to, create or incur any mortgage or pledge, as
security for any indebtedness for borrowed money, on or of any shares of stock
or indebtedness owing by a Restricted Subsidiary or any Principal Property of
the Company or a Restricted Subsidiary, whether such shares of stock or
indebtedness of a Restricted Subsidiary or Principal Property are owned at the
date of this Indenture or hereafter acquired, unless the Company secures or
causes such Restricted Subsidiary to secure the outstanding Securities equally
and ratably with all indebtedness secured by such mortgage or pledge, so long as
such indebtedness shall be so secured; provided, however, that this covenant
shall not apply in the case of:
(i) the creation of any mortgage, pledge or other lien on any
shares of stock or indebtedness of a Subsidiary or any Principal
Property hereafter acquired (including acquisitions by way of merger
or consolidation) by the Company or a Restricted Subsidiary
contemporaneously with such acquisition, or within 360 days
thereafter, to secure or provide for the payment or financing of any
part of the purchase price thereof, or the assumption of any mortgage,
pledge or other lien upon any shares of stock or indebtedness of a
Subsidiary or any Principal
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Property hereafter acquired existing at the time of such acquisition,
or the acquisition of any shares of stock or indebtedness of a
Subsidiary or any Principal Property subject to any mortgage, pledge
or other lien without the assumption thereof, provided that every such
mortgage, pledge or lien referred to in this clause (i) shall attach
only to the shares of stock or indebtedness of a Subsidiary or any
Principal Property so acquired and improvements thereon and accessions
thereto;
(ii) any mortgage, pledge or other lien on any shares of stock
or indebtedness of a Subsidiary or any Principal Property existing at
the date of this Indenture;
(iii) any mortgage, pledge or other lien on any shares of stock
or indebtedness of a Subsidiary or any Principal Property in favor of
the Company or any Restricted Subsidiary;
(iv) any mortgage, pledge or other lien existing on any Principal
Property prior to the acquisition thereof by the Company or any of its
Subsidiaries or existing on any Principal Property of any Person that
becomes a Restricted Subsidiary after the date hereof or on its shares
of stock or indebtedness at or prior to the time such Person becomes a
Restricted Subsidiary; provided that (x) such mortgage, pledge or
other lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, (y) such
mortgage, pledge or other lien shall not apply to any other Principal
Property of the Company or any of its Subsidiaries and (z) such
mortgage, pledge or other lien shall secure only those obligations
which it secures on the date of such acquisition or the date such
Person becomes a Restricted Subsidiary and improvements thereon and
accessions thereto;
(v) liens under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the repayment
of debt), or deposits to secure public or statutory obligations of the
Company or any Subsidiary, or deposits of cash or obligations of the
United States of America to secure surety and appeal bonds to which
the Company or any Subsidiary is a party or in lieu of such bonds, or
pledges or deposits for similar purposes in the ordinary course of
business, or liens on standard industry terms imposed by charter
parties or under contracts of affreightment, or margin posted to
secure payment or performance under futures, forwards or swap
agreements, and other obligations of a like nature, in each case in
the ordinary course of business, or liens imposed by law, such as
laborers' or other employees, carriers', warehousemen's, mechanics',
materialmen's and vendors' liens and liens arising out of judgments or
awards against the Company or any Subsidiary with respect to which the
Company or such Subsidiary at the time shall be prosecuting an appeal
or proceedings for review and with respect to which it shall have
secured a stay of execution pending such appeal or proceedings for
review, or liens for property taxes not yet subject to penalties for
non-payment or the amount or validity of which is being in good faith
contested
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by appropriate proceedings by the Company or any Subsidiary, as the
case may be, or minor survey exceptions, minor encumbrances, easements
or reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real
properties, which liens, exceptions, encumbrances, easements,
reservations, rights and restrictions do not, in the opinion of the
Company, in the aggregate materially detract from the value of said
properties or materially impair their use in the operation of the
business of the Company and its Subsidiaries;
(vi) liens on any oil and/or gas properties or other mineral
interests of the Company or any of its Subsidiaries, whether developed
or undeveloped, arising (x) as security for the Company or such
Subsidiary's costs and expenses incurred by it in connection with the
exploration, development or operation of such properties, in favor of
a person who is conducting the exploration, development or operation
of such properties, or (y) in connection with farmout, dry hole,
bottom hole, communitization, unitization, pooling and operating
agreements and/or other agreements of like general nature incident to
the acquisition, exploration, development and operation of such
properties or as required by regulatory agencies having jurisdiction
in the premises;
(vii) overriding royalties, royalties, production payments, net
profits interests or like interests to be paid out of production from
oil and/or gas properties or other mineral interests of the Company or
any of its Subsidiaries, or to be paid out of the proceeds from the
sale of any such production;
(viii) liens securing indebtedness in connection with any
industrial development bond financing, or pollution control revenue
bond financing, or similar financing transaction; and
(ix) any extension, renewal, or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
mortgage, pledge or other lien referred to in the foregoing clauses
(i) to (viii) inclusive; provided, however, that the principal amount
of debt secured thereby shall not exceed the principal amount of debt
so secured at the time of such extension, renewal or replacement, and
that such extension, renewal or replacement shall be limited to all or
a part of the property which secured the mortgage so extended, renewed
or replaced (plus improvements on and accessions to such property).
(b) Notwithstanding the foregoing provisions of this Section 4.03, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee debt secured by mortgage, pledge or other lien which would otherwise
be subject to the foregoing restrictions in an aggregate amount which, together
with all other debt of the Company and its Restricted Subsidiaries which (if
originally issued, assumed or guaranteed at such time) would otherwise be
subject to the foregoing restrictions and Attributable Debt in respect of sale
and lease-back arrangements not covered by 4.04(a), does not at the time exceed
15% of Consolidated Net Tangible Assets.
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SECTION 4.04. Certain Sale and Lease-back Transactions. (a) The
Company will not, and will not permit any Restricted Subsidiary to, sell or
transfer, directly or indirectly, except to the Company or a Restricted
Subsidiary, any Principal Property as an entirety, and as part of the same
transaction or series of transactions take back a lease of such property, except
a lease for a period of three years or less; provided that, notwithstanding the
foregoing, the Company or any Restricted Subsidiary may sell any such Principal
Property and lease it back for a longer period (i) if the Company or such
Restricted Subsidiary would be entitled, pursuant to the provisions of
Section 4.03(a), to create a mortgage on the property to be leased securing
indebtedness in an amount equal to the Attributable Debt with respect to such
sale and lease-back transaction without equally and ratably securing the
outstanding Securities or (ii) if (A) the Company promptly informs the Trustee
of such transaction, (B) the proceeds of such transaction are at least equal to
the fair value (as determined by Board Resolution of the Company) of such
property and (C) the Company causes an amount equal to the net proceeds of the
sale to be applied to the retirement, within 180 days after receipt of such
proceeds, of indebtedness incurred or assumed by the Company or a Restricted
Subsidiary (including the Securities); provided further that, in lieu of
applying all of or any part of such net proceeds to such retirement, the Company
may, within 75 days after such sale, cancel or deliver or cause to be delivered
to the applicable trustee for cancellation either debentures or notes evidencing
indebtedness of the Company (which may include the Securities) or of a
Restricted Subsidiary previously issued or authenticated and delivered by the
applicable trustee, and not theretofore tendered for sinking fund purposes or
called for a sinking fund or otherwise applied as a credit against an obligation
to redeem or retire such notes or debentures, and an Officers' Certificate
(which shall be delivered to the Trustee and which need not contain the
statements prescribed by Section 10.04) stating that the Company elects to
deliver or cause to be delivered such debentures or notes in lieu of retiring
indebtedness as hereinabove provided. If the Company shall cancel or so deliver
debentures or notes to the applicable trustee and the Company shall duly deliver
such Officers' Certificate, the amount of cash which the Company shall be
required to apply to the retirement of indebtedness under this Section 4.04(a)
shall be reduced by an amount equal to the aggregate of the then applicable
optional redemption prices (not including any optional sinking fund redemption
prices) of such debentures or notes, or, if there are no such redemption prices,
the principal amount of such debentures or notes; provided, that in the case of
debentures or notes which provide for an amount less than the principal amount
thereof to be due and payable upon a declaration of the maturity thereof, such
amount of cash shall be reduced by the amount of principal of such debentures or
notes that would be due and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 4.04, the Company or any Restricted Subsidiary may enter into sale and
lease-back transactions in addition to those permitted by paragraph (a) of this
Section 4.04 without any obligation to retire any outstanding Securities or
other indebtedness, provided that at the time of entering into such sale and
lease-back transactions and after giving effect thereto, the Attributable Debt
in respect of such transactions, together with all other Attributable Debt in
respect of transactions subject to this Section 4.04 and not permitted by
paragraph (a) hereof and all other mortgages, pledges or other liens subject to
Section 4.03 and not permitted by paragraph (a) thereof, does not exceed in
aggregate 15% of Consolidated Net Tangible Assets.
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SECTION 4.05. Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end of
its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture, (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture), which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.06. Reports by the Company. The Company covenants to file
with the Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the information,
documents, and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
SECTION 4.07. Delivery of Such Reports. Information and documents to
the Trustee is for informational purposes only, and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely exclusively on an Officers'
Certificate).
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into
the Company unless:
(a) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or that acquired or leased such property and assets of the
Company shall be a corporation organized and validly existing under the laws of
the United States of America or any jurisdiction thereof and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, all
of the obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an Opinion of
Counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company or such successor enforceable against such
entity in accordance with its terms, subject to customary exceptions; and
(b) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that at the time and immediately after giving effect
to such transaction, no Default shall
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have occurred and be continuing and an Opinion of Counsel as to the matters set
forth in Section 5.01(a).
SECTION 5.02. Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition 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 Person had been named
as the Company herein and thereafter, except in the case of a lease, the Company
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at maturity, upon
acceleration or redemption, including as a sinking fund installment, or
otherwise;
(b) the Company defaults in the payment of interest on any Security of
such series when the same becomes due and payable, and such default continues
for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default or
breach continues for a period of 60 consecutive days after written notice to the
Company by the Trustee or to the Company and the Trustee by the Holders of 25%
or more in aggregate principal amount of the Securities of all series affected
thereby;
(d) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or under any mortgage, indenture,
guaranty or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company, whether
such indebtedness now exists or shall hereafter be created, which default shall
have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged or such acceleration having
been rescinded or annulled within a period of 20 days after there 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 principal amount
of the outstanding securities of all series affected thereby a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or such acceleration to be rescinded or annulled and stating that
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such notice is a "Notice of Default" hereunder; provided, that no Event of
Default under this subsection (d) shall be deemed to exist as a result of the
acceleration of any such indebtedness if the principal of and interest on such
indebtedness, when added to the principal of and interest on all other such
indebtedness which has been accelerated as aforesaid (excluding any such
indebtedness which has been discharged or as to which the acceleration has been
duly rescinded or annulled), shall not exceed $50,000,000;
(e) a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under Federal bankruptcy law or any other applicable
Federal or State law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part
of its property, or ordering the winding up or liquidation of its affairs is
entered, and continues unstayed and in effect for a period of 60 consecutive
days;
(f) the Company (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or for all or substantially all of the property and
assets of the Company or (iii) effects any general assignment for the benefit of
creditors; or
(g) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.01 with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate class)
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clauses (c), (d) or (g) of
Section 6.01 with respect to the Securities of one or more but not all series
then outstanding, or with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any
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such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(c) If an Event of Default described in clause (e) or (f) of
Section 6.01 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the Principal
as may be specified in the terms thereof established pursuant to Section 2.03)
of all the Securities then outstanding and interest accrued thereon, if any,
shall be and become immediately due and payable, without any notice or other
action by any Holder or the Trustee, to the full extent permitted by applicable
law.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the Principal as may be specified in the
terms thereof established pursuant to Section 2.03) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such series (or
of all the Securities, as the case may be) and the Principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such Principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series to the date
of such payment or deposit) and such amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.07, and if any and all Events of
Default under the Indenture, other than the non-payment of the Principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal amount of all the then outstanding
Securities of all such series that have been accelerated (voting as a single
class), by written notice to the Company and to the Trustee, may waive all
defaults with respect to all such series (or with respect to all the Securities,
as the case may be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
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SECTION 6.03. Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the principal
as is then accelerable under Section 6.02) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may waive
an existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or
interest on any Security as specified in clauses (a) or (b) of Section 6.01 or
in respect of a covenant or provision of this Indenture which cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default with respect to the Securities of 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 Event of Default or
impair any right consequent thereto.
SECTION 6.05. Control by Majority. Subject to Sections 7.01 and
7.02(e)), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this
Section 6.05.
SECTION 6.06. Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of
a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected 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;
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(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses (including the costs and expenses of its counsel) to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series have
not given the Trustee a direction that is inconsistent with such written
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's Security
on or after the respective due dates expressed on such Security, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.03 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon 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 to it
under Section 7.07. Nothing herein contained shall be deemed to empower 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 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.
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SECTION 6.10. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
First: To the payment of all amounts due the Trustee under
Section 7.07;
Second: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
Third: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series
for Principal and interest, with interest upon the overdue Principal,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such Principal and interest or Yield to Maturity,
without preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of
any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such Principal and accrued and unpaid
interest or Yield to Maturity; and
Fourth: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
SECTION 6.11. 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
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to their former positions hereunder and thereafter all rights and remedies of
the Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 6.12. Undertaking for Costs. 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 or omitted by it as Trustee, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, 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 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder 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. Every right and remedy
given by this Article 6 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.
ARTICLE 7
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
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, unless it receives indemnity reasonably
satisfactory to it against any loss, liability or expense. 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 Article 7.
SECTION 7.02. Certain Rights of Trustee. Subject to Trust Indenture
Act Sections 315(a) through (d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers' Certificate,
Opinion of Counsel (or both), statement,
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instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, 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
Person or Persons. The Trustee need not investigate any fact or matter stated in
the document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
Section 10.04. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or opinion. Subject to
Sections 7.01 and 7.02, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys and agents not regularly
in its employ and shall not be responsible for the misconduct or negligence of
any agent or attorney appointed with due care;
(d) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the board of directors of the Company may be evidenced to the
Trustee by a Board Resolution;
(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, order or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be liable to the Holders for any action it
takes or omits to take in good faith that it believes to be authorized or within
its rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders in accordance with Section 6.05 relating to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture;
(g) 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;
(h) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into
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the facts or matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless requested
in writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then outstanding;
provided that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or liabilities as
a condition to proceeding;
(i) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities of any series unless either
(1) a Responsible Officer of the Trustee assigned to the Corporate Trust
Department of the Trustee (or any successor division or department of the
Trustee) shall have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been given to the
Trustee by the Company or any other obligor on the Securities of any series or
by any Holder of the Securities of any series;
(j) The Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; and
(k) The permissive rights of the Trustee enumerated herein shall not
be construed as duties.
SECTION 7.03. Control by Majority. Subject to Sections 7.01 and
7.02(e), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this
Section 7.03.
SECTION 7.04. Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall be
taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities.
SECTION 7.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a
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Responsible Officer with the Corporate Trust Department of the Trustee, the
Trustee shall give to each Holder of Securities of such series notice of such
Default within 90 days after obtaining knowledge of such Default (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; provided, however, that, (i) except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders and
(ii) in the case of any Default of the character specified in Section 6.01(c)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
May 15, beginning with May 15, 2006, the Trustee shall mail to each Holder as
and to the extent provided in Trust Indenture Act Section 313(c) a brief report
dated as of such May 15, if required by Trust Indenture Act Section 313(a).
SECTION 7.07. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such reasonable compensation
for all services rendered by it hereunder as shall be agreed upon in writing
(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 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 (which, for purposes of this SECTION 7.07,
shall include its officers, directors, employees and agents) for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of 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.
To secure the Company's payment obligations in this SECTION 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in SECTION 6.01(f) or 6.01(g), such expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law.
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In no event shall the Trustee be liable for any indirect, special,
punitive or consequential loss or damage of any kind whatsoever, including, but
not limited to, lost profits, even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
In no event shall the Trustee be liable for any failure or delay in
the performance of its obligations hereunder because of circumstances beyond its
control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo, government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Indenture.
The provisions of this SECTION 7.07 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and appointment
of a successor Trustee as Trustee with respect to the Securities of any series
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next succeeding
paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.07, (i) the retiring Trustee shall
transfer all property held by it as Trustee in respect of the Securities of such
series to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee in
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respect of the Securities of such series shall become effective and (iii) the
successor Trustee shall have all the rights, powers and duties of the Trustee in
respect of the Securities of such series under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder of Securities of such
series.
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 the
preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee in respect of the Securities of such series to all Holders
of Securities of such series. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as set
forth in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(a) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of such
series that have been replaced or Securities of such series that are paid
pursuant to Section 4.01 or Securities of such series for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
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(b) (i) the Securities of such series mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii) the
Company irrevocably deposits in trust with the Trustee, as trust funds solely
for the benefit of the Holders of such Securities for that purpose, money or
U.S. Government Obligations or a combination thereof sufficient (unless such
funds consist solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment, to pay
Principal of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, and (iii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been complied with.
With respect to the foregoing clause (a), only the Company's
obligations under Section 7.07 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (b), only the Company's
obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07 and 8.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture with respect to the Securities of
such series except for those surviving obligations specified above.
SECTION 8.02. Defeasance. Except as provided below, the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have been
satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest on the Securities of such
series, money or U.S. Government Obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
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(d) the Company shall have delivered to the Trustee (i) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service to the
effect that the Holders of the Securities 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 8.02 and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred or (y) an Opinion of Counsel to the same effect as the ruling described
in clause (x) above and (ii) an Opinion of Counsel to the effect that the
Holders of the Securities of such series have a valid security interest in the
trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.02
of the Securities of such series have been complied with.
The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07,
7.08 and 8.05 with respect to the Securities of such series shall survive until
such Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.03. Covenant Defeasance. The Company may omit to comply with
any term, provision or condition set forth in Sections 4.03 or 4.04 (or any
other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03), and such
omission shall be deemed not to be an Event of Default under clauses (c) or (g)
of Section 6.01, and clause (d) of Section 6.01 will no longer be applicable
with respect to the outstanding Securities of a series, if:
(a) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest, if any, on the Securities
of such series, money or U.S. Government Obligations or a combination thereof in
an amount sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration of
any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the Principal of and interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(d) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under the UCC and
(ii) such Holders will not recognize income, gain or
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loss for federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the covenant defeasance contemplated by this
Section 8.03 of the Securities of such series have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of Principal of and
interest on the Securities of such series; but such money need not be segregated
from other funds except to the extent required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon shall
be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request, subject to
applicable abandoned property laws, any money held by them and required to make
payments hereunder under this Indenture that remains unclaimed for two years;
provided that the Trustee or such Paying Agent before being required to make any
payment may cause to be published at the expense of the Company once in an
Authorized Newspaper in The City of New York or with respect to any Security the
interest on which is based on the offered quotations in the interbank Eurodollar
market for dollar deposits in an Authorized Newspaper in London or mail to each
Holder entitled to such money at such Holder's address (as set forth in the
Security Register) notice that such money remains unclaimed and that after a
date specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
8.04 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 of the applicable series shall be revived and reinstated as
though no deposit had occurred pursuant to Sections 8.01, 8.02 or 8.03, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
8.04; provided that, if the Company has made any payment of Principal of or
interest on the Securities of any series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
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such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of any series without
notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not, as evidenced by an
Opinion of Counsel, materially and adversely affect the interests of the
Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a successor
Trustee;
(e) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by
Section 2.03;
(f) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(g) to issue additional Securities of a series previously established,
as provided in Section 2.03 hereof; and
(h) to make any change that does not, as evidenced by an Opinion of
Counsel, materially and adversely affect the rights of any Holder of any series
of Securities, including without limitation, to add the covenants or other
obligations of the Company, to add co-obligors or guarantors for the benefit or
the Holders or to secure the Securities.
SECTION 9.02. With Consent of Holders. Subject to Section 6.07,
without prior notice to any Holders, the Company and the Trustee may amend this
Indenture and the Securities of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Securities of all
series affected by such supplemental indenture (all such series voting as one
class), and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one class)
by written notice to the Trustee may waive future compliance by the Company with
any provision of this Indenture or the Securities of such series.
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Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(a) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security, or
reduce the Principal amount thereof or the rate of interest thereon (including
any amount in respect of original issue discount), or any premium payable with
respect thereto, or reduce the amount of the Principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 6.02 or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency 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 due
date therefor;
(b) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required for
any such supplemental indenture, for any waiver of compliance with certain
provisions of this Indenture or certain Defaults and their consequences provided
for in this Indenture;
(c) waive a Default in the payment of Principal of or interest on any
Security of such Holder; or
(d) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the coupons appertaining to
such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its
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Security or portion of its Security. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver shall
become effective with respect to any Securities affected thereby on receipt by
the Trustee of written consents from the requisite Holders of outstanding
Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be more than 60 days prior to the solicitation of consents) for the
purpose of determining the Holders of the Securities of any series affected
entitled to consent to any amendment, supplement or waiver. If a record date is
fixed, then, notwithstanding the immediately preceding paragraph, those Persons
who were such Holders at such record date (or their duly designated proxies) and
only those Persons shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be such Holders after such record date. No such consent shall be
valid or effective for more than 180 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(a) through (d) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (a) through (d) of Section 9.02, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent Holder
of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, in addition to the documents required by Section 10.03, and
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this
Article 9 is authorized or permitted by this Indenture, stating that all
requisite consents have been obtained or that no consents are required and
stating that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to customary exceptions. Subject to the preceding
sentence, the Trustee shall sign such amendment, supplement or waiver if the
same does not adversely affect the rights of the Trustee. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the requirements
of the Trust Indenture Act as then in effect.
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ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 10.02. Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person when received or
(b) if, to the Holders, if mailed by first class mail 5 days after mailing, or
(c) as between the Company and the Trustee if sent by facsimile transmission,
when transmission is confirmed, in each case addressed as follows:
if to the Company:
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
Attention:
if to the Trustee:
JPMorgan Chase Bank, N.A.
4 New York Plaza, 15th Floor
New York, NY 10004
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York, or with respect to any Security the interest
on which is based on the offered quotations in the interbank Eurodollar market
for dollar deposits at least once in an Authorized Newspaper in London, and by
mailing to the Holders thereof who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee and to Holders of Registered
Securities by mailing to such Holders at their addresses as they shall appear on
the Security Register. Notice mailed shall be sufficiently given if so mailed
within the time prescribed. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 10.02, it is duly given, whether or not the
addressee receives it.
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,
-47-
and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall except as otherwise provided herein
include:
(a) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based;
(c) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided, however,
that, with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 10.05. Evidence of Ownership. The Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of such
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker
-48-
or recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities specified therein. The holding by the Person named
in any such certificate of any Unregistered Securities specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (a) another
certificate bearing a later date issued in respect of the same Securities shall
be produced or (b) the Security specified in such certificate shall be produced
by some other Person, or (c) the Security specified in such certificate shall
have ceased to be outstanding. Subject to Article 7, the fact and date of the
execution of any such instrument and the amount and numbers of Securities held
by the Person so executing such instrument may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in
any other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the Principal of and,
subject to the provisions of this Indenture, interest on such Registered
Security 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.
SECTION 10.06. Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.07. Payment Date Other than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such Security,
as the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of such payment
for the period from and after such date.
SECTION 10.08. Governing Law. The laws of the State of New York shall
govern this Indenture and the Securities.
SECTION 10.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
SECTION 10.10. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
-49-
SECTION 10.11. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 10.12. Separability. 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.
SECTION 10.13. Tables of Contents, Headings, Etc. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
SECTION 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 10.15. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business
Day, then, to the extent permitted by applicable law, the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the Business Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture.
-50-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
AMERADA HESS CORPORATION
as the Company
By: /s/ J. Barclay Collins II
-----------------------------------
Name: J. Barclay Collins II
Title: Executive Vice President
and General Counsel
JPMorgan Chase Bank, N.A.
as Trustee
By: /s/ Francine Springer
-----------------------------------
Name: Francine Springer
Title: Vice President
EXHIBIT A
CUSIP:
ISIN:
FACE OF NOTE
Unless and until this Note is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by The
Depository Trust Company, a New York corporation ("DTC" or the "Depositary"), to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any nominee to a successor Depositary or a nominee of any successor
Depositary. Unless this certificate is presented by an authorized representative
of 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.
No. 1 $[___],000,000
AMERADA HESS CORPORATION
[___]% Note Due [___]
Amerada Hess Corporation, a Delaware corporation (the "Issuer"), for value
received, hereby promises to pay to CEDE & Co. or registered assigns, at the
office or agency of the Issuer in New York, New York, the principal sum of
[___],000,000 Dollars on [___] in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semiannually on [___] and [___]
of each year, commencing [___], on said principal sum at said office or agency,
in like coin or currency, at the rate per annum specified in the title of this
Note, from [___] or [___], 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 these Notes, in which case from [___], until payment
of said principal sum has been made or duly provided for; provided, that payment
of interest may be made at the option of the Issuer by check mailed to the
address of the person entitled thereto as such address shall appear on the
Security register. Notwithstanding the foregoing, if the date hereof is after
the 1st day of [___] or [___], as the case may be, and before the following
[___] or [___], this Note shall bear interest from such [___] or [___];
provided, that if the Issuer shall default in the payment of interest due on
such [___] or [___], then this Note shall bear interest from the next preceding
[___] or [___], to which
EXHIBIT A
Page 2
interest has been paid or, if no interest has been paid on these Notes, from
[___], [___]. The interest so payable on any [___] or [___], will, subject to
certain exceptions 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 [___] or [___], as the case may be, next preceding such [___] or
[___].
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.
EXHIBIT A
Page 3
IN WITNESS WHEREOF, Amerada Hess Corporation has caused this instrument to
be signed by its duly authorized officers.
Dated:
[Company Seal] AMERADA HESS CORPORATION
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
This is one of the Global Notes of the series designated herein referred to
in the within-mentioned Indenture.
JPMORGAN CHASE BANK, N.A., as
Trustee
By:
-------------------------
Name:
Title:
EXHIBIT A
Page 4
REVERSE OF NOTE
AMERADA HESS CORPORATION
[___]% Note Due [___]
This Note is one of a duly authorized issue of debentures, notes, bonds or
other evidences of indebtedness of the Issuer (hereinafter called the "Notes")
of the series hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of [___] (the "Indenture") duly executed and
delivered by the Issuer to JPMorgan Chase Bank, N.A., Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
holders of the Notes. The Notes may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the [___]% Notes
Due [___] of the Issuer, issued in an initial aggregate principal amount of
$[___],000,000.
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 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 Issuer and the Trustee to
amend the Indenture and the Notes of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Notes of all series
affected by such supplemental indenture (all such series voting as one class),
and the Holders of a majority in principal amount of the outstanding Notes of
all series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Issuer with any
provision of the Indenture or the Notes of such series; provided, however, that
no such supplemental indenture shall (i) extend the stated maturity of the
Principal of, or any sinking fund obligation or any installment of interest on,
such Holder's Note, or reduce the principal amount thereof or the rate of
interest thereon (including any amount in respect of original issue discount),
or any premium payable with respect thereto, or reduce the amount of the
Principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 6.02 or the
amount thereof provable in bankruptcy, or change any place of payment where, or
the currency in which, any Note 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 due date therefor; (ii) reduce the percentage in
principal amount of outstanding Notes of the relevant series the consent of
whose Holders is required for such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults and
their
EXHIBIT A
Page 5
consequences provided for in the Indenture; (iii) waive a Default in the payment
of Principal of or interest on any Note of such Holders; (iv) modify any of the
provisions of Section 9.02 of the Indenture, except to increase any such
percentage or to provide that certain other provisions of the Indenture cannot
be modified or waived without the consent of the Holder of each outstanding Note
affected thereby.
It is also provided in the Indenture that, subject to certain conditions,
the Holders of at least a majority in aggregate principal amount of the
outstanding Notes of all series affected (voting as a single class), by notice
to the Trustee, may waive an existing Default or Event of Default with respect
to the Notes of such series and its consequences, except a Default in the
payment of principal of or interest on any Note or 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 Note affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default with respect to the
Notes of such series arising therefrom shall be deemed to have been cured, for
every purpose of the Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Notes are issuable in registered form without coupons in denominations
of $1,000 and any multiple of $1,000 and in book-entry form. The Notes may be
represented by one or more global notes (each, a "Global Note") deposited with
the Depositary and registered in the name of the nominee of the Depositary, with
certain limited exceptions. So long as DTC or any successor Depositary or its
nominee is the registered Holder of a Global Note, DTC, such Depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Notes represented by such Global Note for all purposes under the Indenture and
the Notes. Beneficial interest in the Notes will be evidenced only by, and
transfer thereof will be effected only through, records maintained by DTC and
its participants. Except as provided below, an owner of a beneficial interest in
a Global Note will not be entitled to have Notes represented by such Global Note
registered in such owner's name, will not receive or be entitled to receive
physical delivery of the Notes in certificated form and will not be considered
the owner or Holder thereof under the Indenture.
No Global Note may be transferred except as a whole by the Depositary to a
nominee of the Depositary. Global Notes are exchangeable for certificated Notes
only if (x) the Depositary notifies the Issuer that it is unwilling or unable to
continue as Depositary for such Global Notes or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and the Issuer fails within 90 days thereafter to appoint a
successor, (y) the Issuer in its sole discretion determines that such Global
Notes shall be so exchangeable or (z) there shall have occurred and be
continuing an Event of Default or an event which with the giving of notice or
lapse of time or both would constitute an Event of Default with respect to
EXHIBIT A
Page 6
the Notes represented by such Global Notes. In such event, the Issuer will issue
Notes in certificated form in exchange for such Global Notes. In any such
instance, an owner of a beneficial interest in the Global Notes will be entitled
to physical delivery in certificated form of Notes equal in principal amount to
such beneficial interest and to have such Notes registered in its name. Notes so
issued in certificated form will be issued in denominations of $1,000 or any
integral multiple thereof, and will be issued in registered form only, without
coupons.
No recourse under or upon any obligation, covenant or agreement of the
Issuer 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, of the
Issuer or of any successor corporation, either directly or through the Issuer or
any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
Terms used herein which are not otherwise defined shall have the meanings
set forth in the Indenture.
EXHIBIT 4.1
================================================================================
AMERADA HESS CORPORATION
and
JPMORGAN CHASE BANK, N.A.,
as Trustee
Indenture
Dated as of March 1, 2006
================================================================================
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............1
SECTION 1.01. Definitions...................................................1
SECTION 1.02. Compliance Certificates and Opinions..........................9
SECTION 1.03. Form of Documents Delivered to Trustee.......................10
SECTION 1.04. Acts of Holders; Record Dates................................10
SECTION 1.05. Notices, Etc., to Trustee and Company........................12
SECTION 1.06. Notice to Holders; Waiver....................................13
SECTION 1.07. Conflict with Trust Indenture Act............................13
SECTION 1.08. Effect of Headings and Table of Contents.....................13
SECTION 1.09. Successors and Assigns.......................................14
SECTION 1.10. Separability Clause..........................................14
SECTION 1.11. Benefits of Indenture........................................14
SECTION 1.12. Governing Law................................................14
SECTION 1.13. Legal Holidays...............................................14
SECTION 1.14. No Recourse..................................................14
SECTION 1.15. Accounting Terms.............................................14
ARTICLE TWO SECURITY FORMS....................................................15
SECTION 2.01. Forms Generally..............................................15
SECTION 2.02. Form of Face of Security.....................................16
SECTION 2.03. Form of Reverse of Security..................................18
SECTION 2.04. Form of Legend for Global Securities.........................22
SECTION 2.05. Form of Trustee's Certificate of Authentication..............22
ARTICLE THREE THE SECURITIES..................................................22
SECTION 3.01. Amount Unlimited; Issuable in Series.........................22
SECTION 3.02. Denominations................................................25
SECTION 3.03. Execution, Authentication, Delivery and Dating...............25
SECTION 3.04. Temporary Securities.........................................26
SECTION 3.05. Registration, Registration of Transfer and Exchange..........27
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.............29
SECTION 3.07. Payment of Interest; Interest Rights Preserved...............30
SECTION 3.08. Persons Deemed Owners........................................31
SECTION 3.09. Cancellation.................................................31
SECTION 3.10. Computation of Interest......................................32
ARTICLE FOUR SATISFACTION AND DISCHARGE.......................................32
SECTION 4.01. Satisfaction and Discharge of Indenture......................32
SECTION 4.02. Application of Trust Money...................................33
ARTICLE FIVE REMEDIES.........................................................33
SECTION 5.01. Events of Default............................................33
(i)
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment...........35
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee...................................................36
SECTION 5.04. Trustee May File Proofs of Claim.............................37
SECTION 5.05. Trustee May Enforce Claims Without Possession
of Securities................................................37
SECTION 5.06. Application of Money Collected...............................37
SECTION 5.07. Limitation on Suits..........................................38
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................38
SECTION 5.09. Reserved.....................................................39
SECTION 5.10. Restoration of Rights and Remedies...........................39
SECTION 5.11. Rights and Remedies Cumulative...............................39
SECTION 5.12. Delay or Omission Not Waiver.................................39
SECTION 5.13. Control by Holders...........................................39
SECTION 5.14. Waiver of Past Defaults......................................40
SECTION 5.15. Undertaking for Costs........................................40
SECTION 5.16. Waiver of Usury, Stay or Extension Laws......................40
SECTION 5.17. Unconditional Rights of Holders to Receive Payment
and to Convert...............................................41
ARTICLE SIX THE TRUSTEE.......................................................41
SECTION 6.01. Certain Duties and Responsibilities..........................41
SECTION 6.02. Notice of Defaults...........................................41
SECTION 6.03. Certain Rights of Trustee....................................41
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.......42
SECTION 6.05. May Hold Securities..........................................43
SECTION 6.06. Money for Securities Payments to Be Held in Trust............43
SECTION 6.07. Compensation and Reimbursement...............................44
SECTION 6.08. Conflicting Interests........................................45
SECTION 6.09. Corporate Trustee Required; Eligibility......................45
SECTION 6.10. Resignation and Removal; Appointment of Successor............45
SECTION 6.11. Acceptance of Appointment by Successor.......................47
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business..................................................48
SECTION 6.13. Preferential Collection of Claims Against Company............48
SECTION 6.14. Appointment of Authenticating Agent..........................48
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...............50
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders...50
SECTION 7.02. Preservation of Information; Communications to Holders......50
SECTION 7.03. Reports by Trustee...........................................50
SECTION 7.04. Reports by Company...........................................51
ARTICLE EIGHT CONSOLIDATION AND MERGER........................................51
SECTION 8.01. When The Company May Merge...................................51
SECTION 8.02. Successor Substituted........................................52
(ii)
ARTICLE NINE SUPPLEMENTAL INDENTURES..........................................52
SECTION 9.01. Supplemental Indentures Without Consent of Holders..........52
SECTION 9.02. Supplemental Indentures With Consent of Holders..............53
SECTION 9.03. Execution of Supplemental Indentures.........................54
SECTION 9.04. Effect of Supplemental Indentures............................55
SECTION 9.05. Conformity with Trust Indenture Act..........................55
SECTION 9.06. Reference in Securities to Supplemental Indentures...........55
ARTICLE TEN COVENANTS.........................................................55
SECTION 10.01. Payment of Securities........................................55
SECTION 10.02. Maintenance of Office or Agency..............................56
SECTION 10.03. Negative Pledge..............................................57
SECTION 10.04. Certain Sale and Lease-back Transactions.....................59
SECTION 10.05. Certificate to Trustee.......................................60
SECTION 10.06. Reports by the Company.......................................61
ARTICLE ELEVEN REDEMPTION OF SECURITIES.......................................61
SECTION 11.01. Applicability of Article.....................................61
SECTION 11.02. Election to Redeem; Notice to Trustee........................61
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed............61
SECTION 11.04. Notice of Redemption.........................................62
SECTION 11.05. Deposit of Redemption Price..................................63
SECTION 11.06. Securities Payable on Redemption Date........................63
SECTION 11.07. Securities Redeemed in Part..................................63
ARTICLE TWELVE SINKING FUNDS..................................................64
SECTION 12.01. Applicability of Article.....................................64
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities........64
SECTION 12.03. Redemption of Securities for Sinking Fund....................64
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE...........................65
SECTION 13.01. Company's Option to Effect Defeasance or Covenant
Defeasance...................................................65
SECTION 13.02. Defeasance and Discharge.....................................65
SECTION 13.03. Covenant Defeasance..........................................65
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance..............66
SECTION 13.05. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions................68
SECTION 13.06. Reinstatement................................................68
ARTICLE FOURTEEN SUBORDINATION................................................69
SECTION 14.01. Securities Subordinated to Senior Indebtedness...............69
SECTION 14.02. Securities Subordinated in Any Proceedings...................69
(iii)
SECTION 14.03. No Payment on Securities in Certain Circumstances............69
SECTION 14.04. Subrogation..................................................70
SECTION 14.05. Obligations of the Company Unconditional.....................70
SECTION 14.06. Trustee and Paying Agents Entitled to Assume Payments
Not Prohibited in Absence of Notice..........................71
SECTION 14.07. Defeasance...................................................71
SECTION 14.08. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness.............71
SECTION 14.09. Right to Hold Senior Indebtedness............................71
SECTION 14.10. No Fiduciary Duty of Trustee or Securityholders
to Holders of Senior Indebtedness............................71
SECTION 14.11. Distribution to Holders of Senior Indebtedness...............72
SECTION 14.12. Trustee's Rights to Compensation, Reimbursement
of Expenses and Indemnification..............................72
SECTION 14.13. Exception for Certain Distributions..........................72
SECTION 14.14. Priorities...................................................72
SECTION 14.15. Certain Definitions..........................................72
ARTICLE FIFTEEN CONVERSION....................................................77
SECTION 15.01. Conversion Right and Conversion Price........................77
SECTION 15.02. Conversion Procedure.........................................77
SECTION 15.03. Fractional Shares............................................78
SECTION 15.04. Taxes on Conversion..........................................78
SECTION 15.05. Company to Reserve Securities................................79
SECTION 15.06. Adjustment for Change in Capital Stock.......................79
SECTION 15.07. When De Minimis Adjustment May Be Deferred...................80
SECTION 15.08. When No Adjustment Required..................................80
SECTION 15.09. Notice of Adjustment.........................................80
SECTION 15.10. Voluntary Reduction..........................................80
SECTION 15.11. Notice of Certain Transactions...............................81
SECTION 15.12. Offer to Repurchase Upon A Change of Control.................81
SECTION 15.13. Company Determination Final..................................83
SECTION 15.14. Trustee's Disclaimer.........................................83
SECTION 15.15. Adjustments for Other Securities.............................83
SECTION 15.16. Certain Definitions..........................................83
Testimonium
Signatures and Seals
Acknowledgements
NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A PART
OF THE INDENTURE.
(iv)
AMERADA HESS CORPORATION
Reconciliation of
Certain Sections of this Indenture
relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
Section 310 (a)(1)....................................... 6.09
(a)(2)....................................... 6.09
(a)(3)....................................... Not Applicable
(a)(4)....................................... Not Applicable
(b).......................................... 6.08
............................................. 6.10
Section 311(a) ............................................. 6.13
(b).......................................... 6.13
Section 312(a) ............................................. 7.01
............................................. 7.02
(b).......................................... 7.02
(c).......................................... 7.02
Section 313(a) ............................................. 7.03
(b).......................................... 7.03
(c).......................................... 7.03
(d).......................................... 7.03
Section 314(a) ............................................. 7.04
(a)(4)....................................... 1.02
............................................. 10.06
(b).......................................... Not Applicable
(c)(1)....................................... 1.02
(c)(2)....................................... 1.02
(c)(3)....................................... Not Applicable
(d).......................................... Not Applicable
(e).......................................... 1.02
Section 315(a) ............................................. 6.01
(b).......................................... 6.02
(c).......................................... 6.01
(d).......................................... 6.01
(e).......................................... 5.15
Section 316(a) Not Applicable
(a)(1) (A).................................. 5.02
............................................. 5.13
(a)(1) (B).................................. 5.14
(a)(2)....................................... Not Applicable
(b).......................................... 5.08
(c).......................................... 1.04
Section 317(a) (1).......................................... 5.03
(a)(2)....................................... 5.04
(b).......................................... 4.02
Section 318(a) ............................................. 1.07
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE, dated as of March 1, 2006, between Amerada Hess Corporation,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 1185
Avenue of the Americas, New York, New York 10036, and JPMorgan Chase Bank, N.A.,
a national banking association, 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 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 1.01. 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 at the
date of such computation;
(4) unless the context otherwise requires, any reference to an "Article" or
a "Section" refers to an Article or a Section, as the case may be, of this
Indenture; and
(5) 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.
"Act", when used with respect to any Holder, has the meaning specified in
SECTION 1.04.
"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, when used in connection with a sale and
lease-back transaction referred to in the Indenture, on any date as of which the
amount thereof is to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a fraction, the numerator
of which is the number of full years of the term of the lease relating to the
property involved in such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining on the date of the making of
such computation and the denominator of which is the number of full years of the
term of such lease measured from the first day of such term.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to SECTION 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the board of directors
of the Company or any authorized committee thereof, certified by the secretary
or an assistant secretary to have been duly adopted and to be in full force and
effect on the date of certification, and delivered to the Trustee.
"Business Day" means each day which is not a Legal Holiday.
"Capitalized Lease" means any lease the obligation for Rentals with respect
to which is required to be capitalized on a balance sheet of the lessee in
accordance with generally accepted accounting principles.
"Capitalized Rentals" of any Person means as of the date of any
determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a balance sheet of such Person in
accordance with generally accepted accounting principles.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument
-2-
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 Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. However, subject to the
conversion provisions of SECTION 15, shares issuable on conversion of Securities
shall include only shares of the class designated as Common Stock, par value
$1.00 per share, of the Company at the date of this Indenture or shares of any
class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; provided, however, that if at any time there shall be more than one
such resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President, its Executive Vice President or a Vice
President, and by its Controller, Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Current Liabilities" means, with respect to any Person on any
date, all amounts which, in conformity with GAAP, would be classified as current
liabilities on a consolidated balance sheet of such Person and its consolidated
subsidiaries as at such date.
"Consolidated Intangibles" means, with respect to any Person on any date,
all assets of such Person and its consolidated subsidiaries, determined on a
consolidated basis, that would, in conformity with GAAP, be classified as
intangible assets on a consolidated balance sheet of such Person and its
consolidated subsidiaries as at such date, including, without limitation,
unamortized debt discount and expense, unamortized organization and
reorganization expense, costs in excess of fair market value of acquired
companies, patents, trade or service marks, franchises, trade names, goodwill
and the amount of all write-ups in the book value of assets resulting from any
revaluation thereof.
"Consolidated Net Tangible Assets" means, with respect to any Person on any
date, the amount equal to (a) the amount that would, in conformity with GAAP, be
included as assets on the consolidated balance sheet of such Person and its
consolidated subsidiaries as at such date minus (b) the sum of (i) Consolidated
Intangibles of such Person at such date and (ii) Consolidated Current
Liabilities of such Person at such date.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which
-3-
at the date hereof is located at 4 New York Plaza, 15th Floor, New York, NY
10004; and such other offices as the Trustee may designate from time to time.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in SECTION 13.03.
"Debt" of a Person means, without duplication, (i) any indebtedness for
money borrowed, whether or not evidenced by notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed, (ii) all Capitalized
Rentals of such Person (other than Rentals owing from the Company or any
Restricted Subsidiary to the Company or another Restricted Subsidiary), and
(iii) all Guaranties by such Person of any obligation described in clause (i) or
(ii) of any other Person (other than any such obligation of the Company or any
Subsidiary).
"Defaulted Interest" has the meaning specified in SECTION 3.07.
"Defeasance" has the meaning specified in SECTION 13.02.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by SECTION 3.01.
"Event of Default" has the meaning specified in SECTION 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in SECTION 1.04.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in SECTION 2.04 (or such
legend as may be specified as contemplated by SECTION 3.01 for such Securities).
"Guaranties" by any Person shall mean all obligations (other than
endorsements in the ordinary course of business of negotiable instruments for
deposit or collection) of such Person guaranteeing, or in effect guaranteeing,
any indebtedness, dividend or other obligation of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person: (i) to purchase such indebtedness or obligation or
any property or assets constituting security therefor, (ii) to advance or supply
funds (x) for the purchase or payment of such indebtedness or obligation, (y) to
maintain working capital or other balance sheet condition or otherwise to
advance or make available funds for the purchase or payment of such indebtedness
or obligation, (iii) to lease property or to purchase securities or other
property or services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the primary obligor to make payment
of the indebtedness or obligation, or (iv) otherwise to
-4-
assure the owner of the indebtedness or obligation of the primary obligor
against loss in respect thereof. For the purposes of all computations made under
this Indenture, a Guaranty in respect of any indebtedness for borrowed money
shall be deemed to be indebtedness equal to the principal amount of such
indebtedness for borrowed money which has been guaranteed, and a Guaranty in
respect of any other obligation or liability or any dividend shall be deemed to
be indebtedness equal to the maximum aggregate amount of such obligation,
liability or dividend.
"Holder" means the registered holder of any Security with respect to
Registered Securities and the bearer of any Unregistered Security or any coupon
appertaining thereto, as the case may be.
"Incur", with respect to any Debt, means to incur, create, issue, assume,
guarantee or otherwise become liable for any such Debt (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to the
foregoing).
"Indenture" means this instrument as originally executed and 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, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by SECTION 3.01.
"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.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Legal Holiday" means a Saturday, a Sunday or any other day on which
banking institutions are not required to be open in the State of New York.
"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 or otherwise.
"Mortgage" means any pledge of, conditional sale or other title retention
of, or mortgage or other lien or security interest or encumbrance of any kind
on, any property or assets owned or leased by the Company or any Subsidiary, or
any shares of stock or Debt of any Subsidiary.
"Notice of Default" means a written notice of the kind specified in SECTION
5.01(5) or 5.01(6).
-5-
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president or chief
executive officer or a vice president, and (ii) by the chief financial officer,
the treasurer or any assistance treasurer, or the secretary or an assistant
secretary, complying with SECTION 13.04 and delivered to the Trustee. Each such
certificate shall comply with SECTION 314 of the Trust Indenture Act and include
(except as otherwise expressly provided in the Indenture) the statements
provided in SECTION 13.04. One of the Officers signing an Officers' Certificate
given pursuant to SECTION 10.05 shall be the principal executive, financial or
accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company (whether inside counsel or outside counsel).
"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 5.02.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount 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;
(3) Securities as to which Defeasance has been effected pursuant to
SECTION 13.02;
(4) Securities which have been paid pursuant to SECTION 3.06 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 protected 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, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount
of the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to SECTION 5.02,
(B) if, as of such date, the principal amount payable at the Stated Maturity
of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or
determined as contemplated by SECTION 3.01, (C) the principal amount of a
Security denominated in one or more foreign currencies or currency units
which shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such
-6-
date in the manner provided as contemplated by SECTION 3.01, of the principal
amount of such Security (or, in the case of a Security described in Clause
(A) or (B) above, of the amount determined as provided in such Clause), and
(D) 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, waiver or other action, only
Securities which a Responsible Officer of 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;
and
(5) if applicable, Securities converted into Common Shares in accordance
with Article 15.
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities are present at a meeting of Holders
of Securities for quorum purposes or have consented to or voted in favor of any
request, demand, authorization, direction, notice, consent, waiver, amendment or
modification hereunder, Securities held for the account of the Company or of any
of its affiliates shall be disregarded and deemed not to be Outstanding, except
that in determining whether the Trustee shall be protected in making such a
determination or relying upon any such quorum, consent or vote, only Securities
which a Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Securities so owned that 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 Affiliate of the Company.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
SECTION 3.01.
"Preferred Stock" means, as applied to the Capital Stock of any Person, the
Capital Stock of such Person (other than the Common Stock of such Person) of any
class or classes (however designated) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or involuntary
liquidation, dissolution or winding-up of such Person, to shares of Capital
Stock of any other class of such Person.
"Principal" of a Security means the principal amount of, and unless the
context indicates otherwise, includes any premium payable on the Security.
-7-
"Principal Property" means any oil or gas producing property, onshore or
offshore or any refining or manufacturing plant owned or leased pursuant to a
capital lease by the Company or any Subsidiary, but shall not include any such
property that has been determined by Board Resolution not to be of material
importance to the business conducted by the Company and its subsidiaries taken
as a whole, effective as of the date such Board Resolution is adopted.
"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 at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security registered on the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by SECTION 3.01.
"Rentals" means, as of the date of any determination thereof, all rent
payable by the lessee under a lease of any property or assets, after excluding
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges. Rents under any "percentage
leases" shall be computed solely on the basis of minimum rents, if any, required
to be paid by the lessee regardless of sales volume or gross revenues. 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.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture, 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 any Subsidiary which owns or is a lessee
pursuant to a capital lease of any Principal Property.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in SECTION 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to SECTION 3.07.
-8-
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, with respect to any Person any corporation, association
or other business entity of which more than 50% of the outstanding Voting Stock
is owned, directly or indirectly, by such Person and one or more other
Subsidiaries of such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"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 and
for purposes of Article 14 includes any Paying Agent.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligation" has the meaning specified in SECTION 13.04.
"Vice President", when used with respect to the Company, 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" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii) or if applicable, at
the most recent redetermination of interest on such series or on such Security,
and calculated in accordance with the constant interest method or such other
accepted financial practice as is specified in the terms of such Security.
SECTION 1.02. 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 such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company,
-9-
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
SECTION 10.05) 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. 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 1.04. ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied
-10-
in and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such 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. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to SECTION 6) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
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. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security 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.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the
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applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
SECTION 1.06.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in SECTION 5.02, (iii) any request to institute
proceedings referred to in SECTION 5.07(2) or (iv) any direction referred to in
SECTION 5.13, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in SECTION 1.06.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
SECTION 1.06, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
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(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Worldwide
Securities Services, 4 New York Plaza, 15th Floor, New York, NY 10004.
(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 mailed, first-class postage prepaid, to the Company addressed to
it to the attention of its Secretary 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.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08. 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.
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SECTION 1.09. 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 1.10. 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.
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, 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 1.12. GOVERNING LAW.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 1.13. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) 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 or
Redemption Date, or at the Stated Maturity.
SECTION 1.14. NO RECOURSE.
A director, officer, employee, stockholder or Affiliate, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture. Each Holder by accepting a Security waives and
releases all such liability; provided, however, that nothing in this Section
shall be deemed to relieve any Person referred to herein for any liability
imposed by the Securities Act or the Trust Indenture Act.
SECTION 1.15. ACCOUNTING TERMS.
Unless otherwise specified herein, all accounting terms used herein shall
be interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with generally accepted accounting principles as in effect from time
to time, applied on a basis consistent (except for changes
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concurred in by the Company's independent public accountants) with the most
recent audited consolidated financial statements of the Company and its
consolidated subsidiaries delivered to the Holders of the Securities.
Notwithstanding the foregoing (i) if the effect of any change in generally
accepted accounting principles on the operation of any covenant hereunder would
be to cause an Event of Default hereunder, then the Company's compliance with
such covenant shall be determined on the basis of generally accepted accounting
principles as in effect immediately before the relevant change in generally
accepted accounting principles became effective; provided that such change and
its probable effects (based upon the Company's reasonable estimates at the time)
are disclosed in a Form 10-K or 10-Q for the period during which such change
occurs or for any prior period and (ii) if the Company changes its accounting
practices because of a change in generally accepted accounting principles or a
change in the rules and regulations of the Securities and Exchange Commission
and, by reason of such change in the Company's accounting practices, the Company
would not be in compliance with any provision of Article 10, the Company will
furnish to each Holder financial information, prepared without giving effect to
such change, and the Company will provide the calculations showing that the
Company would have been in compliance with such paragraph before giving effect
to such change.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by SECTION 3.03 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
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SECTION 2.02. FORM OF FACE OF SECURITY.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
AMERADA HESS CORPORATION
............................
No. ......... $ ......
Amerada Hess Corporation, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ...................................., or
registered assigns, the principal sum of .......................................
Dollars on ............................................... [if the Security is
to bear interest prior to Maturity, insert --, and to pay interest thereon from
.............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ............ and
............. in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment [if applicable,
insert --, provided that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of ...% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ....... or
........ (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 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 Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such
-16-
interest on interest shall be legally enforceable), from the date of such demand
until the amount so demanded is paid or made available for payment. Interest on
any overdue interest shall be payable on demand.]
[If applicable, agrees that neither the security evidenced hereby nor the
common stock issuable upon conversion of such security may be resold, pledged or
otherwise transferred (x) within two years after the original issuance of the
security evidenced hereby or (y) by a holder that was an affiliate of the
company at any time during the three months preceding the date of such resale,
pledge or transfer, in either case, except (a) to the company or any subsidiary
thereof, (b) to a qualified institutional buyer in compliance with rule 144a
under the securities act, (c) to a non-U.S. person outside of the united states
in compliance with regulations s under the securities act, (d) pursuant to an
exemption from registration under the securities act to an institutional
accredited investor that is purchasing debentures in aggregate principal amount
of at least $100,000 or to a non-institutional accredited investor that is
purchasing debentures in aggregate principal amount of at least $250,000, and
that, in either case, prior to such transfer, furnishes to JPMorgan Chase Bank,
N.A., as trustee (or any successor trustee, as applicable), a signed letter
containing certain representations and warranties relating to the restrictions
on transfer of the security evidenced hereby (the form of letter can be obtained
from such trustee), (e) pursuant to the exemption from registration provided by
rule 144 under the securities act (if available) or (f) pursuant to a
registration statement which has been declared effective under the securities
act and which continues to be effective at the time of such transfer.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in The City of New York, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts [if applicable,
insert--; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
Amerada Hess Corporation
.......................
Attest:
............
SECTION 2.03. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ........ ..., 200.. (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ..................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert --, limited in aggregate principal amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 20..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
------ --------- ------ ---------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
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[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price
For Redemption Through Redemption Price For
Operation of the Redemption Otherwise Than
Through Operation of the
Sinking Fund
Year Sinking Fund
------ ------------------ -------------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert-- The sinking fund for this series provides for the
redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
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[If applicable, insert --The Securities are subordinated to the Senior
Indebtedness of the Company. To the extent provided in the Indenture, Senior
Indebtedness of the Company must be paid before the Securities may be paid. The
Company agrees, and each Holder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.]
[If applicable, insert--Subject to and upon compliance with the provisions
of the Indenture, the Securities may be converted, at the option of the Holder,
into Common Stock, or such other securities of the Company.]
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall
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have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company or the Trustee may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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SECTION 2.04. FORM OF LEGEND FOR GLOBAL SECURITIES.
Unless otherwise specified as contemplated by SECTION 3.01 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 2.05. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
JPMorgan Chase Bank, N.A.,
as Trustee
By
--------------------------
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to SECTION 3.03,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
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(2) if applicable, that the Securities may be convertible as provided for
in Article 15;
(3) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Securities of the series pursuant to
SECTION 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which,
pursuant to SECTION 3.03, are deemed never to have been authenticated and
delivered hereunder);
(4) the Person to whom any interest on a 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;
(5) the date or dates on which the principal of any Securities of the
series is payable;
(6) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any such interest payable on any
Interest Payment Date;
(7) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(8) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(9) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in SECTION 1.01;
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(13) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies
or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such amount
shall be determined);
(14) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to SECTION 5.02;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(16) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to SECTION 13.02 or SECTION
13.03 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities shall
be evidenced;
(17) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in SECTION 2.04 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of SECTION 3.05 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(18) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to SECTION 5.02;
(19) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series;
(20) if applicable, that the Securities are subordinated as provided for
in Article 14; and
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(21) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by
SECTION 9.01(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to SECTION 3.03) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 3.02. DENOMINATIONS.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by SECTION 3.01. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President, its Executive Vice
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by SECTIONS 2.01 and
3.01, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to SECTION 6) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by SECTION 2.01, that such form has been
established in conformity with the provisions of this Indenture;
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(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by SECTION 3.01, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities 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.
Notwithstanding the provisions of SECTION 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to SECTION 3.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security 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 herein
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 authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in SECTION 3.09, 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.
SECTION 3.04. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
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 and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
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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 in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein 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 Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
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 Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar 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 or the Trustee 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
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exchange of Securities, other than exchanges pursuant to SECTION 3.04, 9.06 or
11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under SECTION 11.03 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by SECTION 3.01.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, SECTION 3.04, 3.06, 9.06
or 11.07 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security, unless such Security is registered in the
name of a Person other than the Depositary for such Global Security or a
nominee thereof.
The following provisions shall apply with respect to any proposed transfer
of a Security (other than a Security the resale of which has been registered or
which has been exchanged for a Security pursuant to an exchange offer
registration statement) or a beneficial interest therein prior to the date which
is two years after the later of the date of its original issue and the last date
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on which the Company or any affiliate of the Company was the owner of such
Security (or any predecessor thereto) (the "Resale Restriction Termination
Date"):
(1) a transfer of a Security or a beneficial interest therein to a
"qualified institutional buyer", as defined in Rule 144A under the Securities
Act ("Rule 144A"), shall be made upon the representation of the transferee in
the form as set forth on the reverse of the Security that it is purchasing
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it
has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A;
(2) a transfer of a Security or a beneficial interest therein to an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act) shall be made upon receipt by the Trustee or
its agent of a certificate substantially in the form set forth in Exhibit A
hereto from the proposed transferee and, if requested by the Company, the
delivery of an opinion of counsel, certification and/or other information
satisfactory to it; and
(3) a transfer of a Security or a beneficial interest therein to a person
who is not a U.S. person, as defined in Regulation S under the Securities Act
("Registration S"), in reliance upon Regulation S shall be made upon receipt
by the Trustee or its agent of a certificate substantially in the form set
forth in Exhibit B hereto from the proposed transferee and, if requested by
the Company, the delivery of an opinion of counsel, certification and/or
other information satisfactory to it.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
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 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 has been acquired by a protected
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security 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 of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the 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 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.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by SECTION 3.01 with respect
to any series of Securities, interest on any 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.
Any interest on any 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 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 given to each Holder of Securities of such
series in the manner set forth in SECTION 1.06, not less than 10 days prior
to such Special Record Date.
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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
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, 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 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment of a 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 Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to SECTION 3.07) any interest on such Security and for all other
purposes whatsoever, whether or not such Security 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.
SECTION 3.09. CANCELLATION.
All Securities 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
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation 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 cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of in accordance with its
customary procedures and upon receipt of a Company Order.
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SECTION 3.10. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by SECTION 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to remaining rights of registration of transfer, substitution and
exchange and conversion of Securities); and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in SECTION 3.06 and (ii) Securities 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 6.06) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(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 deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
money in an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities 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; and
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(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 this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under SECTION 6.07, the obligations of
the Company to any Authenticating Agent under SECTION 6.14 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 4.02 and the last
paragraph of SECTION 6.06 shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of SECTION 6.06, all money
deposited with the Trustee pursuant to SECTION 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities 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 any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of the principal of or any premium on any
Security of such series when the same becomes due and payable at maturity,
upon acceleration or redemption, including as a sinking fund installment, or
otherwise; or
(2) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(3) default in the payment of the principal of (or any premium on) and any
interest upon any Security required to be purchased upon the occurrence of a
Change of Control, if applicable, when and as due by the terms of a Security
of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other
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than that series), and continuance of such default or breach for a period of
60 days after there has 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 principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company, or under any Mortgage,
indenture, guaranty or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed by the
Company, whether such indebtedness now exists or shall hereafter be created,
which default shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within a period of
20 days after there 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 principal amount of the Outstanding Securities of
all series affected thereby a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or cause
such acceleration to be rescinded or annulled, as the case may be, and
stating that such notice is a "Notice of Default" hereunder; provided, that
no Event of Default under this paragraph shall be deemed to exist as a result
of the acceleration of any such indebtedness if the principal of and interest
on such indebtedness, when added to the principal of and interest on all
other such indebtedness which has been accelerated as aforesaid (excluding
any such indebtedness which has been discharged or as to which the
acceleration has been duly rescinded or annulled), shall not exceed
$50,000,000; provided, however, that, subject to the provisions of
SECTIONS 6.01 and 6.02, the Trustee shall not be deemed to have knowledge of
such default unless either (A) a Responsible Officer of the Trustee shall
have actual knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the holder of
any such indebtedness or from the trustee under any such mortgage, indenture
or other instrument; or
(6) a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under Federal bankruptcy law or any other
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs is entered, and continues unstayed and in effect
for a period of 60 consecutive days ; or
(7) the Company (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or for all or substantially all of the property and
assets of the Company or (iii) effects any general assignment for the benefit
of creditors; or
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(8) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
(a) If an Event of Default described in paragraph (1), (2), or (3), if
applicable, of Section 5.01 with respect to the Securities of any series then
outstanding occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of any such affected series then
outstanding hereunder (each such series treated as a separate class) by notice
in writing to the Company (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of any such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series established pursuant to Section 3.01)
of all Securities of such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
(b) If an Event of Default described in paragraphs (4), (5) or (8) of
Section 5.01 with respect to the Securities of one or more but not all series
then outstanding, or with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 3.01) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in paragraph (6) or (7) of
Section 5.01 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the Principal
as may be specified in the terms thereof established pursuant to Section 3.01)
of all the Securities then outstanding and interest accrued thereon, if any,
shall be and become immediately due and payable, without any notice or other
action by any Holder or the Trustee, to the full extent permitted by applicable
law.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the Principal as may be specified in the terms
thereof established pursuant to Section 3.01) of the Securities of any series
(or of all the Securities, as the case may be) shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of each such series (or of all
the Securities, as the case may be) and the Principal of
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any and all Securities of each such series (or of all the Securities, as the
case may be) which shall have become due otherwise than by acceleration (with
interest upon such Principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest, at the
same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of each such series to
the date of such payment of deposit) and such amount as shall be sufficient to
cover all amounts owing the Trustee under Section 6.07, and if any and all
Events of Default under the Indenture, other than the non-payment of the
Principal of Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein, then and in every
such case the Holders of a majority in aggregate principal amount of all the
then outstanding Securities of all such series that have been accelerated
(voting as a single class), by written notice to the Company and to the Trustee,
may waive all defaults with respect to all such series (or with respect to all
the Securities, as the case may be) and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent
thereon.
For all purposes under this Indenture, if a portion of the Principal of any
Original Issue Discount Securities shall have been accelerated and declared due
and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, 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 an Event of Default with respect to Securities 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
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Holders of Securities 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 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized 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 6.07.
No provision of this Indenture 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
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; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities 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 in respect of which such judgment has been
recovered.
SECTION 5.06. 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 any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
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First: To the payment of all amounts due the Trustee under SECTION 6.07;
and
Second: To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities 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 for principal and any premium and interest, respectively; and
Third: To the payment of the Remainder, if any, to the Company or any other
Person lawfully entitled thereto.
SECTION 5.07. LIMITATION ON SUITS.
No Holder of any Security 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) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series 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;
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 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 of such
Holders.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to SECTION 3.07)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date)
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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 5.09. RESERVED.
SECTION 5.10. 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.
SECTION 5.11. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
SECTION 3.06, 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 5.12. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities 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. 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 5.13. CONTROL BY HOLDERS.
The Holders of a majority in principal amount (or, if any Securities are
Original Issue Discount Securities, such portion of the principal as is then
accelerable under Section 5.02) of the Outstanding Securities of all series
affected (voting as a single class) 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, and
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(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.14. WAIVER OF PAST DEFAULTS.
Subject to SECTION 5.02 the Holders of not less than a majority in
principal amount (or, if the Securities are Original Issue Discount Securities,
such portion of the principal as is then accelerable under Section 5.02) of the
Outstanding Securities of all series affected (voting as a single class) may on
behalf of the Holders of all the Securities of all such series waive any past
default hereunder with respect to all such series and its consequences, except a
default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
(2) in respect of a covenant or provision hereof which 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, and any Event of
Default 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.
SECTION 5.15. UNDERTAKING FOR COSTS.
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, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 5.16. WAIVER OF USURY, 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 usury, 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.
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SECTION 5.17. UNCONDITIONAL RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and interest (including
Additional Amounts, if any) on such Security on the Stated Maturity expressed in
such Security (or, in the case of redemption, on the Redemption Date, or in the
case of the exercise of a Repurchase Right, on the Repurchase Date) and, if
applicable, to convert such Security in accordance with Article 15, and to bring
an action for the enforcement of any such payment on or after such respective
dates and, if applicable, such right to convert, and such rights shall not be
impaired or affected without the consent of such Holder.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. 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 6.02. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in
SECTION 5.01(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. 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.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of SECTION 6.01:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
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;
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(2) 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 shall be sufficiently evidenced by a
Board Resolution;
(3) 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;
(4) 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;
(5) 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;
(6) 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, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) The trustee shall not be charged with knowledge of any default or
Event of Default with respect to the Notes, unless either (1) a Responsible
Officer shall have actual knowledge of such default or Event of Default or
(2) written notice of such default or Event of Default shall have been given
to the Trustee by the Company or by any Holder of the Securities; and
(9) the permissive rights of the Trustee enumerated herein shall not be
construed as duties.
SECTION 6.04. 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 neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the
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Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, 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 and, subject to
SECTIONS 6.08 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 6.06. 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 or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and 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, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, 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) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
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 or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by
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the Company) shall be discharged from such trust; and the Holder of such
Security 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 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 therein, 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.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable compensation
for all services rendered by it hereunder as shall be agreed upon in writing
(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 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 (which, for purposes of this SECTION 6.07,
shall include its officers, directors, employees and agents) for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of 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.
To secure the Company's payment obligations in this SECTION 6.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in SECTION 5.01(6) or 5.01(7), such expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law.
In no event shall the Trustee be liable for any indirect, special, punitive
or consequential loss or damage of any kind whatsoever, including, but not
limited to, lost profits, even if the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.
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In no event shall the Trustee be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond its
control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo, government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Indenture.
The provisions of this SECTION 6.07 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
SECTION 6.08. 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 being a trustee under this Indenture with respect to
Securities of more than one series.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person 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
the Trustee with respect to the Securities of any series 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 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
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 6.11.
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 6.11 shall not have
been delivered to the 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.
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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.
If at any time:
(1) the Trustee shall fail to comply with SECTION 6.08 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under SECTION 6.09 and shall
fail to resign after written request therefor by the Company or by any such
Holder, 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, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to SECTION 5.15, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of 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 or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of SECTION 6.11. 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 6.11, 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 6.11, 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.
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 to all Holders of
Securities of such series in the manner provided in
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SECTION 1.06. 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.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
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.
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 co-trustees 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.
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 the
first or second preceding paragraph, as the case may be.
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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 6.12. 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, shall be the successor of the Trustee hereunder, provided 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.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), 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 6.14. 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
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to SECTION 3.06, 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 organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. 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.
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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 an 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 the Authenticating Agent.
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 give notice of such
appointment in the manner provided in SECTION 1.06 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. 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 therein referred to
in the within-mentioned Indenture.
JPMorgan Chase Bank, N.A.
------------------------------
as Trustee
By
---------------------------,
as Authenticating Agent
By
----------------------------
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after the Regular Record Date
for each series of Securities, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of Securities
of each series as of such Regular Record Day, and
(2) 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 as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in SECTION 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
SECTION 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, 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 any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
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
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and with the Company. The Company will notify the Trustee when any Securities
are listed on any stock exchange.
SECTION 7.04. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to 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 Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
Except for certificates delivered pursuant to SECTION 10.05 hereof or
SECTION 314(a)(4) of the Trust Indenture Act, delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such reports shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE EIGHT
CONSOLIDATION AND MERGER
SECTION 8.01. WHEN THE COMPANY MAY MERGE.
The Company shall not consolidate with, merge with or into, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions) to any Person or permit any
Person to merge with or into the Company unless:
(a) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or that acquired or leased such property and assets of the
Company shall be a corporation organized and validly existing under the laws of
the United States of America or any jurisdiction thereof and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, all
of the obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an Opinion of
Counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company or such successor enforceable against such
entity in accordance with its terms, subject to customary exceptions; and
(b) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that at the time and immediately after giving effect
to such transaction, no Default shall
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have occurred and be continuing and an Opinion of Counsel as to the matters set
forth in Section 5.01(a).
SECTION 8.02. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, conveyance, transfer, lease
or other disposition of all or substantially all of the property and assets of
the Company in accordance with Section 8.01 of this Indenture, the successor
Person formed by such consolidation or into which the Company is merged or to
which such sale, conveyance, transfer, lease or other disposition 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
Person had been named as the Company herein and thereafter, except in the case
of a lease, the company shall be relied of all obligations and covenants under
this indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by 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 Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(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; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default
are to be for the benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination
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(A) shall neither (i) apply to any Security of any series created prior to
the execution of such supplemental indenture and entitled to the benefit of
such provision nor (ii) modify the rights of the Holder of any such Security
with respect to such provision or (B) shall become effective only when there
is no such Security Outstanding; or
(6) to secure the Securities pursuant to the requirements of SECTION 10.03
or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by SECTIONS 2.01 and 3.01; or
(8) 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 6.11; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (9) shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect; or
(10) If applicable, make provisions with respect to the conversion rights
of Holders of Securities pursuant to SECTION 15.01; or
(11) If applicable, reduce the Conversion Price; provided, however, that
such reduction in the Conversion Price shall not adversely affect the
interest of the Holders of Securities (after taking into account tax and
other consequences of such reduction).
SECTION 9.02. 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 each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by 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 or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
SECTION 5.02, or change the coin or currency in which, any Security or any
premium or interest
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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
(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, or
(3) modify any of the provisions of this Section, SECTION 5.14 or
SECTION 15.12, if applicable, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each 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 15.12,
if applicable, or the deletion of this proviso, in accordance with the
requirements of SECTION 6.11 and 9.01(8), or.
(4) if applicable, modify the provisions in Article 14 relating to the
subordination provisions of the Securities in a manner adverse to the Holders
of Securities.
(5) if applicable, except as permitted by SECTION 15.12, adversely affect
the right to convert any Security as provided in Article 15.
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 9.03. 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 documents required by SECTION 1.02, and (subject to
SECTION 6) 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 or immunities under this Indenture or otherwise.
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SECTION 9.04. 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 9.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 9.06. 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.
ARTICLE TEN
COVENANTS
SECTION 10.01. PAYMENT OF SECURITIES.
The company shall pay the principal of and interest on the securities on
the dates and in the manner provided in the securities and this indenture. The
interest on securities with coupons attached (together with any additional
amounts payable pursuant to the terms of such securities) shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. The interest on
any temporary unregistered securities (together with any additional amounts
payable pursuant to the terms of such securities) shall be paid, as to the
installments of interest evidenced by coupons attached thereto, if any, only
upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such unregistered securities for
notation thereon of the payment of such interest. The interest on registered
securities (together with any additional amounts payable pursuant to the terms
of such securities) shall be payable only to the holders thereof and at the
option of the company may be paid by mailing checks for such interest payable to
or upon the written order of such holders at their last addresses as they appear
on the security register of the company.
Notwithstanding any provisions of this Indenture and the Securities of any
series to the contrary, if the Company and a Holder of any Registered Security
so agree, payments of interest on, and any portion of the Principal of, such
Holder's Registered Security (other than interest
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payable at maturity or on any redemption or repayment date or the final payment
of Principal on such Security) shall be made by the Paying Agent, upon receipt
from the Company of immediately available funds by 10:00 a.m., New York City
time (or such other time as may be agreed to between the Company and the Paying
Agent), directly to the Holder of such Security (by Federal funds wire transfer
or otherwise) if the Holder has delivered written instructions to the Trustee at
least 15 days prior to such payment date requesting that such payment will be so
made and designating the bank account to which such payments shall be so made
and in the case of payments of Principal surrenders the same to the Trustee in
exchange for a Security or Securities aggregating the same principal amount as
the unredeemed principal amount of the Securities surrendered. The Trustee shall
be entitled to rely on the last instruction delivered by the Holder pursuant to
this Section unless a new instruction is delivered 15 days prior to a payment
date. The Company will indemnify and hold each of the Trustee and any Paying
Agent harmless against any loss, liability or expense (including attorneys'
fees) resulting from any act or omission to act on the part of the Company or
any such Holder in connection with any such agreement or from making any payment
in accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be surrendered for registration
of transfer or exchange or for presentation for payment and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Company hereby initially designates the Corporate Trust
Office of the Trustee, located in the Borough of Manhattan, The City of New
York, as such office or agency of the Company. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in SECTION 1.05.
The Company will maintain one or more agencies in a city or cities located
outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("Dollars") at each agency
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series
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and coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of any series may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York, for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 10.03. NEGATIVE PLEDGE.
(a) The Company will not, and will not permit any Restricted Subsidiary to,
create or incur any mortgage or pledge, as security for any indebtedness for
borrowed money, on or of any shares of stock or indebtedness owing by a
Restricted Subsidiary or any Principal Property of the Company or a Restricted
Subsidiary, whether such shares of stock or indebtedness of a Restricted
Subsidiary or Principal Property are owned at the date of this Indenture or
hereafter acquired, unless the Company secures or causes such Restricted
Subsidiary to secure the outstanding Securities equally and ratably with all
indebtedness secured by such mortgage or pledge, so long as such indebtedness
shall be so secured; provided, however, that this covenant shall not apply in
the case of:
(i) the creation of any mortgage, pledge or other lien on any shares
of stock or indebtedness of a Subsidiary or any Principal
Property hereafter acquired (including acquisitions by way of
merger or consolidation) by the Company or a Restricted
Subsidiary contemporaneously with such acquisition, or within
360 days thereafter, to secure or provide for the payment or
financing of any part of the purchase price thereof, or the
assumption of any mortgage, pledge or other lien upon any shares
of stock or indebtedness of a Subsidiary or any Principal
Property hereafter acquired existing at the time of such
acquisition, or the acquisition of any shares of stock or
indebtedness of a Subsidiary or any Principal Property subject
to any mortgage, pledge or other lien without the assumption
thereof, provided that every such mortgage, pledge or lien
referred to in this clause (i) shall attach only to the shares
of stock or indebtedness of a Subsidiary or any Principal
Property so acquired and improvements thereon and accessions
thereto;
(ii) any mortgage, pledge or other lien on any shares of stock or
indebtedness of a Subsidiary or any Principal Property existing
at the date of this Indenture;
(iii) any mortgage, pledge or other lien on any shares of stock or
indebtedness of a Subsidiary or any Principal Property in favor
of the Company or any Restricted Subsidiary;
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(iv) any mortgage, pledge or other lien existing on any Principal
Property prior to the acquisition thereof by the Company or any
of its Subsidiaries or existing on any Principal Property of any
Person that becomes a Restricted Subsidiary after the date
hereof or on its shares of stock or indebtedness at or prior to
the time such Person becomes a Restricted Subsidiary; provided
that (x) such mortgage, pledge or other lien is not created in
contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, (y) such mortgage, pledge or other
lien shall not apply to any other Principal Property of the
Company or any of its Subsidiaries and (z) such mortgage, pledge
or other lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person
becomes a Restricted Subsidiary and improvements thereon and
accessions thereto;
(v) liens under workmen's compensation laws, unemployment insurance
laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the
repayment of debt), or deposits to secure public or statutory
obligations of the Company or any Subsidiary, or deposits of
cash or obligations of the United States of America to secure
surety and appeal bonds to which the Company or any Subsidiary
is a party or in lieu of such bonds, or pledges or deposits for
similar purposes in the ordinary course of business, or liens on
standard industry terms imposed by charter parties or under
contracts of affreightment, or margin posted to secure payment
or performance under futures, forwards or swap agreements, and
other obligations of a like nature, in each case in the ordinary
course of business, or liens imposed by law, such as laborers'
or other employees, carriers', warehousemen's mechanics',
materialmen's and vendors' liens and liens arising out of
judgments or awards against the Company or any Subsidiary with
respect to which the Company or such Subsidiary at the time
shall be prosecuting an appeal or proceedings for review and
with respect to which it shall have secured a stay of execution
pending such appeal or proceedings for review, or liens for
property taxes not yet subject to penalties for non-payment or
the amount or validity of which is being in good faith contested
by appropriate proceedings by the Company or any Subsidiary, as
the case may be, or minor survey exceptions, minor encumbrances,
easements or reservations of, or rights of others for, rights of
way, sewers, electric lines, telegraph and telephone lines and
other similar purposes, or zoning or other restrictions as to
the use of real properties, which liens, exceptions,
encumbrances, easements, reservations, rights and restrictions
do not, in the opinion of the Company, in the aggregate
materially detract from the value of said properties or
materially impair their use in the operation of the business of
the Company and its Subsidiaries;
(vi) liens on any oil and/or gas properties or other mineral
interests of the Company or any of its Subsidiaries, whether
developed or undeveloped,
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arising (x) as security for the Company or such Subsidiary's
costs and expenses incurred by it in connection with the
exploration, development or operation of such properties, in
favor of a person who is conducting the exploration, development
or operation of such properties, or (y) in connection with
farmout, dry hole, bottom hole, communitization, unitization,
pooling and operating agreements and/or other agreements of like
general nature incident to the acquisition, exploration,
development and operation of such properties or as required by
regulatory agencies having jurisdiction in the premises;
(vii) overriding royalties, royalties, production payments, net
profits interests or like interests to be paid out of production
from oil and/or gas properties or other mineral interests of the
Company or any of its Subsidiaries, or to be paid out of the
proceeds from the sale of any such production;
(viii) liens securing indebtedness in connection with any industrial
development bond financing, or pollution control revenue bond
financing, or similar financing transaction; and
(ix) any extension, renewal, or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
mortgage, pledge or other lien referred to in the foregoing
clauses (i) to (viii) inclusive; provided, however, that the
principal amount of debt secured thereby shall not exceed the
principal amount of debt so secured at the time of such
extension, renewal or replacement, and that such extension,
renewal or replacement shall be limited to all or a part of the
property which secured the mortgage so extended, renewed or
replaced (plus improvements on and accessions to such property).
(b) Notwithstanding the foregoing provisions of this SECTION 10.03, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee debt secured by mortgage, pledge or other lien which would otherwise
be subject to the foregoing restrictions in an aggregate amount which, together
with all other debt of the Company and its Restricted Subsidiaries which (if
originally issued, assumed or guaranteed at such time) would otherwise be
subject to the foregoing restrictions and Attributable Debt in respect of sale
and lease-back arrangements not covered by SECTION 10.04, does not at the time
exceed 15% of Consolidated Net Tangible Assets.
SECTION 10.04. CERTAIN SALE AND LEASE-BACK TRANSACTIONS.
The Company will not, and will not permit any Restricted Subsidiary to,
sell or transfer, directly or indirectly, except to the Company or a Restricted
Subsidiary, any Principal Property as an entirety, and as part of the same
transaction or series of transactions take back a lease of such property, except
a lease for a period of three years or less; provided that, notwithstanding the
foregoing, the Company or any Restricted Subsidiary may sell any such Principal
Property and lease it back for a longer period (i) if the Company or such
Restricted Subsidiary would be entitled, pursuant to the provisions of
SECTION 10.03(a), to create a mortgage on the property
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to be leased securing indebtedness in an amount equal to the Attributable Debt
with respect to such sale and lease-back transaction without equally and ratably
securing the outstanding Securities or (ii) if (A) the Company promptly informs
the Trustee of such transaction, (B) the proceeds of such transaction are at
least equal to the fair value (as determined by Board Resolution of the Company)
of such property and (C) the Company causes an amount equal to the net proceeds
of the sale to be applied to the retirement, within 180 days after receipt of
such proceeds, of indebtedness incurred or assumed by the Company or a
Restricted Subsidiary (including the Securities); provided, further, that, in
lieu of applying all of or any part of such net proceeds to such retirement, the
Company may, within 75 days after such sale, cancel or deliver or cause to be
delivered to the applicable trustee for cancellation either debentures or notes
evidencing indebtedness of the Company (which may include the Securities) or of
a Restricted Subsidiary previously issued or authenticated and delivered by the
applicable trustee, and not theretofore tendered for sinking fund purposes or
called for a sinking fund or otherwise applied as a credit against an obligation
to redeem or retire such notes or debentures, and an Officers' Certificate
(which shall be delivered to the Trustee and which need not contain the
statements prescribed by SECTION 10.04) stating that the Company elects to
deliver or cause to be delivered such debentures or notes in lieu of retiring
indebtedness as hereinabove provided. If the Company shall cancel or so deliver
debentures or notes to the applicable trustee and the Company shall duly deliver
such Officers' Certificate, the amount of cash which the Company shall be
required to apply to the retirement of indebtedness under this SECTION 10.04(a)
shall be reduced by an amount equal to the aggregate of the then applicable
optional redemption prices (not including any optional sinking fund redemption
prices) of such debentures or notes, or, if there are no such redemption prices,
the principal amount of such debentures or notes; provided, that in the case of
debentures or notes which provide for an amount less than the principal amount
thereof to be due and payable upon a declaration of the maturity thereof, such
amount of cash shall be reduced by the amount of principal of such debentures or
notes that would be due and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued.
Notwithstanding the provisions of this SECTION 10.04, the Company or any
Restricted Subsidiary may enter into sale and lease-back transactions in
addition to those permitted by this SECTION 10.04 without any obligation to
retire any outstanding Securities or other indebtedness, provided that at the
time of entering into such sale and lease-back transactions and after giving
effect thereto, the Attributable Debt in respect of such transactions, together
with all other Attributable Debt in respect of transactions subject to this
SECTION 10.04 hereof and all other mortgages, pledges or other liens subject to
SECTION 10.03 thereof, does not exceed in aggregate 15% of Consolidated Net
Tangible Assets.
SECTION 10.05. CERTIFICATE TO TRUSTEE.
The Company will furnish to the Trustee annually, on or before a date not
more than four months after the end of its fiscal year (which, on the date
hereof, is a calendar year), a brief certificate (which need not contain the
statements required by 1.02) from its principal executive, financial or
accounting officer as to his or her knowledge of the compliance of the Company
with all conditions and covenants under this indenture (such compliance to be
determined
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without regard to any period of grace or requirement of notice provided under
this Indenture), which certificate shall comply with the requirements of the
Trust Indenture Act.
SECTION 10.06. REPORTS BY THE COMPANY.
The Company covenants to file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports which the Company
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such reports shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. 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 3.01 for such Securities) in accordance
with this Article.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by
SECTION 3.01 for such Securities. In case of any redemption at the election of
the Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), 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, of the Redemption Price, of the principal amount of Securities
of such series to be redeemed and, if applicable, of the tenor of the Securities
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.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), 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
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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 a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), 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 and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
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 11.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the identification (and,
in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all
the Outstanding Securities of any series consisting of a single Security are
to be redeemed, the principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
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(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
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 and shall be irrevocable.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. New York City time 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 10.03) an amount of money 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 11.06. 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. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by SECTION 3.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will 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 3.07.
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 11.07. 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 deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, 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.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by SECTION 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities 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 such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in SECTION 12.02. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities 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 any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, 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 pursuant to
SECTION 12.02 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to 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 11.03 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 11.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in SECTIONS 11.06 and 11.07.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may elect, at its option at any time, to have SECTION 13.02 or
SECTION 13.03 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to SECTION 3.01 as being defeasible pursuant to such
SECTION 13.02 or 13.03, in accordance with any applicable requirements provided
pursuant to SECTION 3.01 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by SECTION 3.01 for such Securities.
SECTION 13.02. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in SECTION 13.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in SECTION 13.04 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under SECTIONS 3.04, 3.05, 3.06,
10.02 and 6.06, (3) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (4) this Article. Subject to compliance with this Article,
the Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
SECTION 13.03 applied to such Securities.
SECTION 13.03. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
(1) the Company shall be released from its obligations under SECTION 8.01,
SECTIONS 10.01 through 10.04, inclusive, SECTION 15.12, if applicable, and any
covenants provided pursuant to SECTION 3.01(18), 9.01(2) or 9.01(7) for the
benefit of the Holders of such Securities and (2) the occurrence of any event
specified in SECTIONS 5.01(4), 5.01(5) (with respect to any of SECTION 8.01,
SECTIONS 10.01 through 10.04, inclusive, SECTION 15.12, if applicable, and any
such covenants provided pursuant to SECTIONS 3.01(18), 9.01(2) or 9.01(7)),
5.01(6), 5.01(7) and 5.01(10) shall be deemed not to be or result in an Event of
Default in each case with respect to such Securities as provided in this Section
on and after the date the conditions set forth in
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SECTION 13.04 are satisfied (hereinafter called "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that, with respect to such Securities,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such specified Section (to
the extent so specified in the case of SECTION 5.01(5)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by
reason of any reference in any such Section to any other provision herein or in
any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of SECTION 13.02
or SECTION 13.03 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by SECTION 6.09 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or any such other qualifying trustee) to pay and discharge, the principal of
and any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America for
the payment of which the full faith and credit of the United States of
America is pledged or (ii) an obligation of a Person controlled or supervised
by and acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof, and
(y) any depositary receipt issued by a bank (as defined in SECTION 3(a)(2) of
the Securities Act) as custodian with respect to any U.S. Government
Obligation which is specified in Clause (x) above and held by such bank for
the account of the holder of such depositary receipt, or with respect to any
specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, 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 depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary
receipt.
(2) In the event of an election to have SECTION 13.02 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this instrument,
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there has been a change in the applicable Federal income tax law, in either
case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit, Defeasance and
discharge to be effected with respect to such Securities and will be subject
to Federal income tax on the same amount, in the same manner and at the same
times as would be the case if such deposit, Defeasance and discharge were not
to occur.
(3) In the event of an election to have SECTION 13.03 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in SECTIONS 5.01(6) and (7), at
any time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
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SECTION 13.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of SECTION 6.06, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee or other qualifying trustee (solely for purposes of this Section and
SECTION 13.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to SECTION 13.04 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to SECTION 13.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in SECTION 13.04 with
respect to any Securities which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance, as
the case may be, with respect to such Securities.
SECTION 13.06. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to SECTION 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to SECTION 13.05 with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
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ARTICLE FOURTEEN
SUBORDINATION
SECTION 14.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
If applicable, the right of Holders to payment of the Principal of and
interest on the Securities is subordinated to the rights of holders of Senior
Indebtedness, to the extent and in the manner provided in this Article 14.
SECTION 14.02. SECURITIES SUBORDINATED IN ANY PROCEEDINGS.
Upon any Distribution in any Proceedings,
(1) any Distribution to which the Holders are entitled shall be paid
directly to the holders of Senior Indebtedness to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid after giving
effect to all other Distributions to or for the benefit of the holders of
Senior Indebtedness (except that the provisions of this Section 14.02(1)
shall not apply to amounts subject to the lien of the Trustee pursuant to
Section 6.07 hereof, which amounts shall be paid directly to the Trustee);
and
(2) in the event that any Distribution is received by the Trustee before
all Senior Indebtedness is paid in full, such Distribution shall be applied
by the Trustee in accordance with this Article 14.
SECTION 14.03. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
The Company shall not, directly or indirectly (other than in Capital Stock
of the Company) pay any Principal of or interest on, redeem, defease or
repurchase any of the Securities (i) after the issuance of a Senior Indebtedness
Default Notice and such default has not been cured or waived, (ii) after a
Senior Indebtedness Payment Default, unless and until such Senior Indebtedness
Payment Default has been cured, waived, or otherwise has ceased to exist, or
(iii) upon the acceleration of the Securities so long as the Company has any
Senior Indebtedness outstanding.
During a Payment Blockage Period, no payment of any Principal of or
interest on the Securities may be made, directly or indirectly, by the Company.
Unless the Senior Indebtedness in respect of which the Senior Indebtedness
Default Notice has been given has been declared due and payable in its entirety
within the Payment Blockage Period, at the end of the Payment Blockage Period,
the Company shall pay all sums not paid to the Holders during the Payment
Blockage Period and resume all other payments on the Securities as and when due.
Defaulted Interest shall be paid in accordance with SECTION 3.07. Any number of
Senior Indebtedness Default Notices may given; provided, however, that as to any
issue of Senior Indebtedness (i) not more than one Senior Indebtedness Default
Notice shall be given within a period of any 366 consecutive days, and (ii) no
specific act, omission, or condition that gave rise to a default that existed
upon the date of such Senior Indebtedness Default Notice (whether or not such
default
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applies to the same issue of Senior Indebtedness) shall be made the basis for
the commencement of any other Payment Blockage Period.
If any Distribution, payment or deposit to redeem, defease or acquire any
of the Securities shall have been received by the Trustee at a time when such
Distribution was prohibited by the provisions of this SECTION 14.03, then,
unless such Distribution is no longer prohibited by this SECTION 14.03, such
Distribution shall be received and applied by the Trustee for the benefit of the
holders of Senior Indebtedness, and shall be paid or delivered by the Trustee to
the holders of Senior Indebtedness for application to the payment of all Senior
Indebtedness.
SECTION 14.04. SUBROGATION.
The Holders shall not have any subrogation or other rights of recourse to
any security in respect of any Senior Indebtedness until such time as all Senior
Indebtedness shall have been paid in full. Upon the payment in full of all
Senior Indebtedness, the Holders shall be subrogated to the rights of the
holders of Senior Indebtedness to receive Distributions applicable to Senior
Indebtedness until all amounts owing in respect of the Securities shall be so
paid. No Distributions to the holders of Senior Indebtedness which otherwise
would have been made to the Holders shall, as between the Company and the
Holders, be deemed to be payment by the Company to or on account of Senior
Indebtedness.
If any Distribution to which the Holders would otherwise have been entitled
shall have been applied pursuant to the provisions of this Article to the
payment of Senior Indebtedness, then the Holders shall be entitled to receive
from the holders of such Senior Indebtedness any Distributions received by such
holders of Senior Indebtedness in excess of the amount sufficient to pay all
amounts payable on such Senior Indebtedness to the extent provided herein.
SECTION 14.05. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
This Article defines the relative rights of the Holders and holders of
Senior Indebtedness. Nothing in this Indenture is intended to or shall impair,
as between the Company and the Holders, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders the Principal of and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders and creditors of the Company, other than the holders of
Senior Indebtedness, nor shall anything herein or in the Securities prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article 14, of the holders of Senior Indebtedness in respect of any
Distribution received upon the exercise of any such remedy. If the Company fails
because of this Article to pay principal of or interest on a Security on the due
date, the failure is still a Default. Upon any Distribution, the Trustee and the
Holders shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which the Proceeding is pending, or a certificate of
the liquidating trustee or agent or other Person making any Distribution for the
purpose of ascertaining the Persons entitled to participate in such
Distribution, the holders of Senior Indebtedness and other Debt of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 14.
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SECTION 14.06. TRUSTEE AND PAYING AGENTS ENTITLED TO ASSUME PAYMENTS NOT
PROHIBITED IN ABSENCE OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee, unless and until a Trust Officer shall have received, no later than
three (3) Business Days prior to such payment, written notice thereof from the
Company or from one or more holders of Senior Indebtedness and, prior to the
receipt of any such written notice, the Trustee, shall be entitled in all
respects conclusively to presume that no such fact exists. Unless the Trustee
shall have received the notice provided for in the preceding sentence, the
Trustee shall have full power and authority to receive such payment and to apply
the same to the purpose for which it was received, and shall not be affected by
any notice to the contrary which may be received by it on or after such date.
The foregoing shall not apply to any Affiliate of the Company acting as Paying
Agent.
SECTION 14.07. DEFEASANCE.
Amounts deposited in trust with the Trustee pursuant to and in accordance
with Article 13 and not prohibited to be deposited under SECTION 14.03 when
deposited shall not be subject to this Article 14.
SECTION 14.08. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any holder of any Senior Indebtedness established in this
Article 14 shall at any time or in any way be prejudiced or impaired by any act
or failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any failure by the Company to comply with
the terms of this Indenture.
SECTION 14.09. RIGHT TO HOLD SENIOR INDEBTEDNESS.
The Trustee is entitled to all of the rights set forth in this Article 14
in respect of any Senior Indebtedness at any time held by it to the same extent
as any other holder of Senior Indebtedness.
SECTION 14.10. NO FIDUCIARY DUTY OF TRUSTEE OR SECURITYHOLDERS TO HOLDERS OF
SENIOR INDEBTEDNESS
Neither the Trustee nor the Holders owes any fiduciary duty to the holders
of Senior Indebtedness. Neither the Trustee nor the Holders shall be liable to
any holder of Senior Indebtedness in the event that the Trustee, acting in good
faith, shall pay over or distribute to the Holders, the Company, or any other
Person, any property to which any holders of Senior Indebtedness are entitled by
virtue of this Article or otherwise. Nothing contained in this SECTION 14.10
shall affect the obligation of any other such Person to hold such payment for
the benefit of, and to pay such payment over to, the holders of Senior
Indebtedness.
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SECTION 14.11. DISTRIBUTION TO HOLDERS OF SENIOR INDEBTEDNESS.
Any Distribution otherwise payable to the holders of the Securities made to
holders of Senior Indebtedness pursuant to this Article shall be made to such
holders of Senior Indebtedness ratably according to the respective amount of
Senior Indebtedness held by each.
SECTION 14.12. TRUSTEE'S RIGHTS TO COMPENSATION, REIMBURSEMENT OF EXPENSES AND
INDEMNIFICATION.
The Trustee's rights to compensation, reimbursement of expenses and
indemnification under SECTION 6.07 is not subordinated.
SECTION 14.13. EXCEPTION FOR CERTAIN DISTRIBUTIONS.
The rights of holders of Senior Indebtedness under this Article do not
extend (a) to any Distribution to the extent applied to the Trustee's rights to
compensation, reimbursement of expenses or indemnification or (b) to (i)
securities which are subordinated to the securities distributed to the holders
of Senior Indebtedness on terms no less favorable to the holders of Senior
Indebtedness than the provisions of this Article, or (ii) Distributions under
any plan approved by the court in any Proceeding.
SECTION 14.14. PRIORITIES.
If the Trustee collects any money or property pursuant to Article 5, it
shall pay out the money or property in the following order at the date or dates
fixed by the Trustee and, in the case of distribution of such money on account
of principal, premium, if any, or interest, if any, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid
FIRST: to the Trustee for amounts due under Article 6;
SECOND: to Holders of Senior Indebtedness of the Company;
THIRD: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
FOURTH: to the Company.
SECTION 14.15. CERTAIN DEFINITIONS.
As used in this Article 14,
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participation or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
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"Change of Control" means the occurrence of any of the following after the
original issuance of the Securities:
(1) the acquisition by any Person of beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of shares of Capital Stock of the Company entitling such
person to exercise 50% or more of the total voting power of all shares of
Capital Stock of the Company entitled to vote generally in elections of
directors, other than any such acquisition by the Company, any subsidiary of the
Company or any employee benefit plan of the Company; or
(2) any consolidation or merger of the Company with or into any other
Person, any merger of another Person into the Company, or any conveyance,
transfer, sale, lease or other disposition of all or substantially all of the
properties and assets of the Company to another Person, other than (a) any such
transaction (x) that does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Capital Stock of the Company
and (y) pursuant to which holders of Capital Stock of the Company immediately
prior to such transaction have the entitlement to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of Capital Stock
of the Company entitled to vote generally in the election of directors of the
continuing or surviving person immediately after such transaction and (b) any
merger which is effected solely to change the jurisdiction of incorporation of
the Company and results in a reclassification, conversion or exchange of
outstanding shares of Common Stock solely into shares of common stock of the
surviving entity;
and in the case of convertible securities, provided, however, that a Change of
Control shall not be deemed to have occurred if the Trading Price per share of
the Common Stock for any five Trading Days within the period of 10 consecutive
Trading Days ending immediately after the later of the Change of Control or the
public announcement of the Change of Control, in the case of a Change of Control
under clause (1) above, or the period of 10 consecutive Trading Days ending
immediately before the Change of Control, in the case of a Change of Control
under clause (2) above, shall equal or exceed 110% of the Conversion Price of
the Securities in effect on each such Trading Day. Beneficial ownership shall be
determined in accordance with Rule 13d-3 promulgated by the Securities and
Exchange Commission under the Exchange Act. As used in this definition, the term
"Person" shall include any syndicate or group which would be deemed to be a
"person" under Section 13(d)(3) of the Exchange Act.
"Currency Agreement" means in respect of a Person any foreign exchange
contract, currency swap agreement or other similar agreement designed to protect
such Person against fluctuations in currency values.
"Disqualified Stock" means, with respect to any Person, that portion of any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable at the option of the holder) or
upon the happening of any event:
(1) matures (excluding any maturity as a result of an optional redemption
by the issuer thereof) or is mandatorily redeemable (other than redeemable only
for Capital Stock of such Person which is not itself Disqualified Stock)
pursuant to a sinking fund obligation or otherwise;
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(2) is convertible or exchangeable at the option of the holder for
Indebtedness or Disqualified Stock; or
(3) is mandatorily redeemable or must be purchased upon the occurrence of
certain events or otherwise, in whole or in part;
in each case on or prior to the date that is 91 days after the Stated Maturity
of the Securities; provided, however, that if such Capital Stock is issued to
any employee or to any plan for the benefit of employees of the Company or its
Subsidiaries or by any such plan to such employees, such Capital Stock shall not
constitute Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy obligations as a result of such
employee's death or disability; and provided, further, however, that any Capital
Stock that would not constitute Disqualified Stock but for provisions thereof
giving holders thereof the right to require such Person to purchase or redeem
such Capital Stock upon the occurrence of an "asset sale" or "Change of Control"
occurring prior to the date that is 91 days after the Stated Maturity of the
Securities shall not constitute Disqualified Stock if the "asset sale" or
"Change of Control" provisions applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than the terms applicable to the
Securities in Section 10.03 and 15.12 of this Indenture.
The amount of any Disqualified Stock that does not have a fixed redemption,
repayment or repurchase price shall be calculated in accordance with the terms
of such Disqualified Stock as if such Disqualified Stock were redeemed, repaid
or repurchased on any date on which the amount of such Disqualified Stock is to
be determined pursuant to this Indenture; provided, however, that if such
Disqualified Stock could not be required to be redeemed, repaid or repurchased
at the time of such determination, the redemption, repayment or repurchase price
shall be the book value of such Disqualified Stock as reflected in the most
recent financial statements of such Person.
"Distribution" in any Proceeding means any payment or distribution of
assets or securities of the Company of any kind or character from any source,
whether in cash, securities or other property made by the Company, custodian,
liquidating trustee or agent or any other person whether pursuant to a plan or
otherwise.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Agreement or Currency Agreement or similar
Agreement.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal in respect of (A) indebtedness of such Person for
borrowed money and (B) indebtedness evidenced by notes, debentures, bonds or
other similar instruments for the payment of which such Person is responsible or
liable, including, in each case, any premium on such indebtedness to the extent
such premium has become due and payable;
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(2) any Capitalized Rentals of such Person and all Attributable Debt in
respect of Sale/Leaseback Transactions entered into by such Person;
(3) all obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations of such Person and
all obligations of such Person under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(4) all obligations of such Person for the reimbursement of any obligor on
any letter of credit, bankers' acceptance or similar credit transaction (other
than obligations with respect to letters of credit securing obligations (other
than obligations described in clauses (1) through (3) above) entered into in the
ordinary course of business of such Person to the extent such letters of credit
are not drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth Business Day following payment on the letter
of credit);
(5) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock of such
Person or, with respect to any Preferred Stock of any Subsidiary of such Person,
the principal amount of such Preferred Stock to be determined in accordance with
this Indenture (but excluding, in each case, any accrued dividends);
(6) all obligations of the type referred to in clauses (1) through (5) of
other Persons and all dividends of other Persons for the payment of which, in
either case, such Person is responsible or liable, directly or indirectly, as
obligor, guarantor or otherwise, including by means of any Guarantee;
(7) all obligations of the type referred to in clauses (1) through (6) of
other Persons secured by any Lien on any property or asset of such Person
(whether or not such obligation is assumed by such Person), the amount of such
obligation being deemed to be the lesser of the value of such property or assets
and the amount of the obligation so secured; and (8) to the extent not otherwise
included in this definition, Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date; provided,
however, that in the case of Indebtedness sold at a discount, the amount of such
Indebtedness at any time will be the accreted value thereof at such time.
"Interest Rate Agreement" means the obligations of any Person pursuant to
any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated by
applying a fixed or a floating rate of interest on the same notional amount and
shall include, without limitation, interest rate swaps, caps, floors, collars
and similar agreements to protect such Person against fluctuations in interest
rates.
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"Payment Blockage Period" means the period beginning when a Senior
Indebtedness Default Notice is given to the Company and the Trustee and ending
(a) when the default identified in the Senior Indebtedness Default Notice is
cured, waived or otherwise ceases to exist or (b) after 179 or fewer days,
whichever occurs first.
"Proceeding" A liquidation, dissolution, bankruptcy, insolvency,
reorganization, receivership or similar proceeding under bankruptcy law, an
assignment for the benefit of creditors, any marshalling of assets or
liabilities, or winding up or dissolution, but shall not include any transaction
permitted by and made in compliance with Article 8
"Senior Indebtedness" means with respect to any Person:
(1) Indebtedness of such Person, whether outstanding on the Issue Date
or thereafter Incurred; and
(2) accrued and unpaid interest (including interest accruing on or
after the filing of, or which would have accrued but for the filing of, any
petition in bankruptcy or for reorganization relating to such Person
whether or not post-filing interest is allowed in such proceeding) in
respect of (A) indebtedness of such Person for borrowed money, (B) Hedging
Obligations and (C) indebtedness evidenced by Securities, debentures, bonds
or other similar instruments for the payment of which such Person is
responsible or liable
unless, in the case of clauses (1) and (2), in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is
expressly provided that such obligations are subordinate or pari passu in right
of payment to the Securities or the Guaranty of such Person, as the case may be;
provided, however, that Senior Indebtedness shall not include:
(1) any obligation of such Person to any Subsidiary;
(2) any liability for Federal, state, local or other taxes owed or
owing by such Person;
(3) any accounts payable or other liability to trade creditors arising
in the ordinary course of business including guarantees thereof or
instruments evidencing such liabilities)
(4) any Indebtedness of such Person (and any accrued and unpaid
interest in respect thereof) which is subordinate or junior in any respect
to any other Indebtedness or other obligation of such Person; or
(5) that portion of any Indebtedness which at the time of Incurrence
is Incurred in violation of this Indenture.
"Senior Indebtedness Default Notice" means any notice of a default (other
than a Senior Indebtedness Payment Default) that permits the holders of any
Senior Indebtedness to declare such Senior Indebtedness due and payable.
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"Senior Indebtedness Payment Default" means a default in the payment of any
principal, premium, if any, sinking fund or interest with respect to any Senior
Indebtedness.
ARTICLE FIFTEEN
CONVERSION
SECTION 15.01. CONVERSION RIGHT AND CONVERSION PRICE.
If so provided in a Board Resolution, Supplemental Indenture or Officers
Certificate pursuant to Section 3.01, a holder of a Security may convert it into
Common Stock or such other security of the Company at any time before the close
of business on the date specified in the Board Resolution or Officers
Certificate. If the Security is called for redemption, the holder may convert it
at any time before the close of business on the Business Day prior to the
redemption date. The initial conversion prices shall be stated in the Board
Resolution or Officers Certificate, subject to adjustment in certain events. In
certain circumstances the right to convert a Security into Common Stock or such
other security may be changed into a right to convert it into securities, cash
or other assets of the Company or another.
A Holder may convert a portion of a Security if the portion is $1,000 or a
whole multiple of $1,000. Provisions of this Indenture that apply to conversion
of all of a Security also apply to conversion of a portion of it.
SECTION 15.02. CONVERSION PROCEDURE.
To convert a Security, a Holder must (1) complete and sign the conversion
notice on the back of the Security, (2) surrender the Security to the Trustee,
(3) furnish appropriate endorsements and transfer documents if required by the
Trustee, (4) pay any transfer or similar tax if required, and (5) provide funds,
if applicable, required pursuant to the next paragraph. The date on which the
Holder satisfies all such requirements is the conversion date. As soon as
practicable, the Company shall deliver, or shall cause the Trustee to deliver,
upon the order of the Holder, a certificate for the number of full shares of
Common Stock or such other security issuable upon the conversion and a check for
any fractional share. The Persons in whose name the certificate is registered
shall be treated as a stockholder of record on and after the conversion date.
Any Security surrendered for conversion during the period from the close of
business on the record date for any interest payment date to the close of
business on the Business Day next preceding the following interest payment date
shall (unless such Security or portion thereof shall have been called for
redemption on a date fixed for redemption which occurs during the period
beginning at the close of business on such record date and ending at the opening
of business on the first Business Day after the next succeeding interest payment
date, or if such interest payment date is not a Business Day, the second such
Business Day) be accompanied by payment, in New York Clearing House funds or
other funds acceptable to the Company, of an amount equal to the interest
otherwise payable on such interest payment date on the Principal amount being
converted; provided, however, that no such payment need be made if there shall
exist at the
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conversion date a Default in the payment of interest on the Securities.
Notwithstanding SECTION 3.01, if a holder has paid an amount equal to the
interest otherwise payable in accordance with the preceding sentence and the
Company thereafter defaults in the payment of interest on such interest payment
date, such Defaulted Interest, together with interest thereon shall be paid to
the Person who made such required payment no later than the payment date set in
accordance with SECTION 3.01. Except as provided above in this SECTION 15.02, no
payment or other adjustment shall be made for interest accrued on any Security
converted or for dividends on any securities issued on conversion of the
Security.
Except as provided in the immediately preceding paragraph, the Company's
delivery of the fixed number of shares of Common Stock or such other security
into which a Security is convertible will be deemed to satisfy the Company's
obligation to pay the Principal amount of the Security and all accrued interest
(and original issue discount) that has not previously been (or is not
simultaneously being) paid. The Common Stock or such other security is treated
as issued first in payment of accrued interest (and original issue discount) and
then in payment of Principal. Thus, accrued interest (and original issue
discount) are treated as paid rather than canceled.
If a Holder converts more than one Security at the same time, the number of
full shares issuable and payment pursuant to SECTION 15.03 upon the conversion
shall be based on the total Principal amount of the Securities converted.
Upon surrender of a Security that is converted in part, the Trustee shall
authenticate for the Holder a new Security equal in Principal amount to the
unconverted Principal amount of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday in
a place where the Trustee is located, the Security may be surrendered to the
Company or the Trustee on the next succeeding Business Day.
SECTION 15.03. FRACTIONAL SHARES.
The Company shall not issue a fractional share of Common Stock or
fractional interest or of such other security upon conversion of a Security.
Instead, the Company shall deliver a check for an amount equal to the current
market value of the fractional share. The current market value of a fraction of
a share shall be determined as follows: Multiply the current market price of a
full share by the fraction. Round the result to the nearest cent.
The current market price of a share of Common Stock for purposes of this
SECTION 15.03 shall be the Quoted Price of the Common Stock on the last trading
day prior to the conversion date. In the absence of such a quotation, the Board
shall determine the current market price in good faith on the basis of such
information as it considers reasonably appropriate.
SECTION 15.04. TAXES ON CONVERSION.
If a Holder of a Security converts it, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of Common Stock or such other security
-78-
upon the conversion. However, the Holder shall pay any withholding tax or any
such tax that is due because the shares are issued in a name other than the
Holder's name.
SECTION 15.05. COMPANY TO RESERVE SECURITIES.
The Company shall at all times reserve out of its authorized but unissued
Common Stock or its Common Stock held in treasury enough shares of Common Stock
to permit the conversion of the Securities, if such Securities are convertible
into Common Stock. If such Securities are convertible into other securities of
the Company, the Company shall at all times maintain sufficient amounts of
authorized but unissued amounts of such securities to permit the conversion of
the Securities.
All shares of Common Stock or other securities issued upon conversion of
the Securities shall be fully paid and non-assessable and free of any preemptive
or other similar rights.
The Company shall endeavor to comply with all securities laws regulating
the offer and delivery of shares of Common Stock or other securities upon
conversion of Securities and shall endeavor to list such Common Stock on each
national securities exchange on which the Common Stock is listed.
SECTION 15.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. If the Company:
(1) pays a dividend or makes a distribution on its Common Stock in shares
of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a greater
number of shares;
(3) combines its outstanding shares of Common Stock into a smaller number
of shares; or
(4) takes such other action as shall be specified by Board Resolution,
Supplemental Indenture or Officer's Certificate;
then the conversion privilege and the conversion price in effect immediately
prior to such action shall be proportionately adjusted so that the Holder of a
Security thereafter converted may receive the aggregate number and kind of
shares of Capital Stock of the Company that the Holder would have owned
immediately following such action if the Security had converted immediately
prior to such action.
Each adjustment contemplated by this SECTION 15.06 shall become effective
immediately after the record date in the case of a dividend or distribution and
immediately after the effective date in the case of a subdivision, combination
or reclassification.
If after an adjustment a Holder of a Security upon conversion of it may
receive shares of two or more classes of Capital Stock of the Company, the
Board, acting in good faith, shall determine the allocation of the adjusted
conversion price among the classes of Capital Stock.
-79-
After such allocation, the conversion privilege and the conversion price of each
class of Capital Stock shall thereafter be subject to adjustment on terms
comparable to those applicable to Common Stock in this Article. The term "Common
Stock" shall thereafter apply to each class of Capital Stock and the Company
shall enter into such supplemental Indenture, if any, as may be necessary to
reflect such conversion privilege and conversion price.
The adjustment contemplated by this SECTION 15.06 shall be made
successively whenever any of the events listed above shall occur.
SECTION 15.07. WHEN DE MINIMIS ADJUSTMENT MAY BE DEFERRED.
No adjustment in the conversion price need be made unless the adjustment
would require an increase or decrease of at least 1% in the conversion price.
All calculations under this Article shall be made to the nearest cent or to the
nearest 1/100th of a share, as the case may be. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
SECTION 15.08. WHEN NO ADJUSTMENT REQUIRED.
No adjustment need be made for a transaction referred to in SECTION 15.06
if Securityholders are permitted to participate in the transaction on a basis
and with notice that the Board determines to be fair and appropriate in light of
the basis and notice on which holders of Common Stock are permitted to
participate in the transaction.
No adjustments need be made for rights to purchase Common Stock pursuant to
a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no par value of
the Common Stock.
To the extent the Securities become convertible into cash, no adjustment
need be made thereafter as to the cash. Interest will not accrue on the cash.
SECTION 15.09. NOTICE OF ADJUSTMENT.
Whenever the conversion price is adjusted, the Company shall promptly mail
to Securityholders a notice of the adjustment. The Company shall file with the
Trustee a certificate from the Company's independent public accountants briefly
stating the facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct, absent
mathematical error.
SECTION 15.10. VOLUNTARY REDUCTION.
The Company may from time to time reduce the conversion price by any amount
for any period of time if the period is at least 20 days and if the reduction is
irrevocable during the period; provided, however, that in no event may the
conversion price be less than the par value of a share of Common Stock.
-80-
Whenever the conversion price is reduced, the Company shall mail to
Securityholders a notice of the reduction. The Company shall mail the notice at
least 15 days before the date the reduced conversion price takes effect. The
notice shall state the reduced conversion price and the period it will be in
effect.
A reduction of the conversion price does not change or adjust the
conversion price otherwise in effect for purposes of SECTION 15.06.
SECTION 15.11. NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) the Company takes any action that would require an adjustment in the
conversion price pursuant to SECTION 15.06 or an applicable Board Resolution,
Supplemental Indenture or Officer's Certificate and if the Company does not
permit Securityholders to participate pursuant to SECTION 15.08;
(2) the Company takes any action that would require a supplemental
indenture pursuant to SECTION 15.12; or
(3) there is a liquidation or dissolution of the Company,
(4) the Company shall mail to Securityholders a notice stating the
proposed record date for a dividend or distribution or the proposed effective
date of a subdivision, combination, reclassification, consolidation, merger,
transfer, lease, liquidation or dissolution. The Company shall mail the
notice at least 20 days before such date. Failure to mail the notice or any
defect in it shall not affect the validity of the transaction.
SECTION 15.12. OFFER TO REPURCHASE UPON A CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder shall have the
right to require the Company to repurchase all or any part (equal to $1,000 or
an integral multiple thereof) of that Holder's Securities pursuant to the Change
of Control offer on the terms set forth in this Indenture at an offer price in
cash equal to 101% of the aggregate principal amount of Securities repurchased
plus accrued and unpaid interest, if any, on the Securities repurchased to the
date of purchase. Within 30 days following any Change of Control, the Company
shall mail a notice to each Holder stating:
(1) the transaction or transactions that constitute the Change of Control;
(2) that the Change of Control offer is being made pursuant to this
Section 15.12 and that all Securities tendered shall be accepted for payment;
(3) the purchase price and the purchase date, which date shall be no
earlier than 30 days and no later than 60 days from the date the notice is
mailed;
-81-
(4) that any Security not tendered or properly withdrawn shall continue to
accrue interest;
(5) that, unless the Company defaults in the payment of the Change of
Control payment, all Securities accepted for payment pursuant to the Change
of Control offer shall cease to accrue interest after the Change of Control
payment date;
(6) that Holders electing to have any Securities purchased pursuant to a
Change of Control offer shall be required to surrender the Securities,
together with such form or forms as may be specified, to a Paying Agent at
the address specified in the notice prior to the close of business on the
third Business Day preceding the Change of Control payment date;
(7) that Holders shall be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the second
Business Day preceding the Change of Control payment date, a telegram, telex,
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of Securities delivered for purchase, and a statement that
such Holder is withdrawing its election to have the Securities purchased; and
(8) that Holders whose Securities are being purchased only in part shall
be issued new Securities equal in principal amount to the unpurchased portion
of the Securities surrendered, which unpurchased portion must be equal to
$1,000 in principal amount or an integral multiple thereof.
On the Change of Control payment date, the Company shall, to the extent
lawful:
(1) accept for payment all Securities or portions of Securities validly
tendered and not properly withdrawn pursuant to the Change of Control offer;
(2) deposit with the Paying Agent an amount equal to the Change of Control
payment in respect of all Securities or portions of Securities properly
tendered and not properly withdrawn pursuant to the Change of Control offer;
and
(3) deliver or cause to be delivered to the Trustee the Securities so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Securities or portions of Securities being purchased by
the Company.
The Paying Agent shall promptly mail to each Holder of Securities validly
tendered and not properly withdrawn the Change of Control payment for such
Securities, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Security equal in principal
amount to any unpurchased portion of the Securities surrendered, if any;
provided that each new Security will be in a principal amount of $1,000 or an
integral multiple thereof.
The Company shall publicly announce the results of the Change of Control
offer on or as soon as practicable after the Change of Control payment date.
-82-
The Company shall not be required to make a Change of Control offer upon a
Change of Control if a third party makes the Change of Control offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control offer made by the Company
and purchases all Securities validly tendered and not properly withdrawn under
such Change of Control offer.
The Company shall comply with the Requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent those laws and regulations are applicable in connection with the
repurchase of the Securities as a result of a Change of Control. To the extent
that the provisions of any securities laws or regulations conflict with the
Change of Control provisions of this Indenture, the Company shall comply with
the applicable securities laws and regulations and will not be deemed to have
breached its obligations under this section by virtue of such conflict.
SECTION 15.13. COMPANY DETERMINATION FINAL.
Any determination that the Company or the Board must make pursuant to
SECTIONS 15.03, 15.06 or 15.08 is conclusive, absent mathematical error. Not
later than the date of making any such determination pursuant to SECTION 15.06
or 15.08, the Company shall deliver to the Trustee an Officers' Certificate
stating the basis upon which such determination was made and, if pursuant to
SECTION 15.06, the calculations by which adjustments under such Sections were
made.
SECTION 15.14. TRUSTEE'S DISCLAIMER.
The Trustee has no duty to determine when an adjustment under this Article
should be made, how it should be made or what it should be. The Trustee has no
duty to determine whether any provisions of a supplemental indenture under
SECTIONS 15.06 or 15.12 are correct. The Trustee makes no representation as to
the validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for the Company's failure to
comply with this Article. Each Conversion Agent other than the Company shall
have the same protection under this Section as the Trustee.
SECTION 15.15. ADJUSTMENTS FOR OTHER SECURITIES.
To the extent the Company issues Securities convertible into securities
other than Common Stock, the Company shall provide for adjustments to the
conversion price, if any, in a Supplemental Indenture applicable to such
Securities.
SECTION 15.16. CERTAIN DEFINITIONS.
Defined terms used in this Article 15 and in Article 14 have the meaning as
specified in Section 14.15.
-83-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
AMERADA HESS CORPORATION
as the Company
By: /s/ J. Barclay Collins II
-----------------------------------
Name: J. Barclay Collins II
Title: Executive Vice President
and General Counsel
JPMORGAN CHASE BANK, N.A.
as Trustee
By: /s/ Francine Springer
-----------------------------------
Name: Francine Springer
Title: Vice President
[Letterhead of White & Case LLP]
March 1, 2006
Amerada Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
Dear Sirs:
We have examined the Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
in the form in which it is to be filed today by Amerada Hess Corporation, a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission (the "Commission") relating to (i) shares of common stock, par value
$1.00 per share, of the Company (the "Common Shares"), (ii) shares of preferred
stock, par value $1.00 per share, of the Company (the "Preferred Shares"), which
may be convertible into Common Shares, (iii) debt securities consisting of
debentures, notes or other evidences of indebtedness representing unsecured,
unsubordinated obligations of the Company (the "Senior Debt Securities"), which
Senior Debt Securities may be convertible into Common or Preferred Shares,
(iv) debt securities consisting of debentures, notes or other evidences of
indebtedness representing unsecured, subordinated obligations of the Company
(the "Subordinated Debt Securities" and together with the Senior Debt
Securities, the "Debt Securities"), which Subordinated Debt Securities may be
convertible into Common or Preferred Shares, (v) warrants (the "Warrants"),
(vi) purchase contracts (the "Purchase Contracts"), (vii) depositary shares
representing Preferred Shares (the "Depositary Shares") and (viii) units
comprised of the foregoing (the "Units"). The Common Shares, the Preferred
Shares, the Senior Debt Securities, the Subordinated Debt Securities, the
Warrants, the Purchase Contracts, the Depositary Shares and the Units are
collectively referred to herein as the "Securities". The Securities are being
registered for offering and sale from time to time pursuant to Rule 415 under
the Securities Act.
The Senior Debt Securities are to be issued pursuant to an Indenture (the
"Senior Debt Indenture"), dated as of March 1, 2006 between the Company and
JPMorgan Chase Bank, N.A., as trustee (the "Senior Debt Trustee"), to be filed
as Exhibit 4 to the Registration Statement. The Subordinated Debt Securities
are to be issued pursuant to an Indenture (the "Subordinated Debt Indenture"),
dated as of March 1, 2006 between the Company and JPMorgan Chase Bank, N.A., as
trustee (the "Subordinated Debt Trustee"), to be filed as Exhibit 4.1 to the
Registration Statement.
Each series of Warrants will be issued under a separate warrant agreement
to be entered into between the Company and a warrant agent (the "Warrant
Agreement").
Purchase Contracts will be issued for the purchase or sale of, or whose
cash value is determined by reference or linked to the performance, level or
value of, Preferred Shares, Debt Securities, Depositary Shares or other
securities described in this Registration Statement.
Amerada Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
Page 2
Depositary Shares will be issued under a deposit agreement between the
Company and a depositary (the "Deposit Agreement"). Each Depositary Share will
represent a fraction or multiple of a share of a Preferred Share and will be
evidenced by a depositary receipt (each, a "Depositary Receipt").
Units will be issued under a unit agreement between the Company and a
unit agent (the "Unit Agreement"). Units may be comprised of one or more Debt
Securities, Warrants, Purchase Contracts and Preferred Shares. Each Unit will be
issued so that the holder of the Unit is also the holder of each Security
included in the Unit.
Based upon our examination of such documents, certificates, records,
authorizations and proceedings as we have deemed relevant, it is our opinion
that:
1. With respect to the Common Shares, when (i) the issuance of the Common
Shares has been duly authorized by appropriate corporate action and (ii) the
certificates for the Common Shares have been duly executed by the Company,
countersigned by the transfer agent therefor and duly delivered to the
purchasers thereof against payment therefor, the Common Shares will be validly
issued, fully paid and nonassessable.
2. With respect to the Preferred Shares, when (i) the issuance of the
Preferred Shares has been duly authorized by appropriate corporate action,
(ii) the Certificate of Designations establishing the terms of the Preferred
Shares has been duly approved by appropriate corporate action, duly executed by
the Company and filed with the Secretary of State of the State of Indiana,
(iii) the certificates for the Preferred Shares have been duly executed by the
Company, countersigned by the transfer agent therefor and delivered to the
purchasers thereof against payment therefor, and (iv) if the Preferred Shares
are convertible into Common Shares, (x) the issuance of such Common Shares has
been duly authorized by appropriate corporate action, (y) the Preferred Shares
are presented for conversion in accordance with the terms thereof and (z) the
certificates for such Common Shares have been duly executed by the Company,
countersigned by the transfer agent therefor and duly delivered upon such
conversion to the persons entitled thereto, in accordance with the terms of such
Preferred Shares, (a) the Preferred Shares will be validly issued, fully paid
and nonassessable and (b) if the Preferred Shares are convertible into Common
Shares, the Common Shares issuable upon conversion of the Preferred Shares will
be validly issued, fully paid and nonassessable.
3. With respect to the Senior Debt Securities, when (i) the Senior Debt
Indenture has been duly authorized, executed and delivered to the Company,
(ii) the issuance of the Senior Debt Securities and approval of the final terms
thereof have been duly authorized by the Company by appropriate corporate
action, (iii) the Senior Debt Securities, in the form included in the Senior
Debt Indenture filed as an exhibit to the Registration Statement (with such
changes or additions as permitted in the Senior Debt Indenture), have been duly
executed and delivered by the Company and authenticated by the Senior Debt
Trustee pursuant to the Senior Debt Indenture and delivered and paid for and
(iv) if the Senior Debt Securities are convertible into Common Shares, (x) the
issuance of such Common Shares has been duly authorized by
Amerada Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
Page 3
appropriate corporate action, (y) the Senior Debt Securities are presented for
conversion in accordance with the terms thereof and (z) the certificates for
such Common Shares have been duly executed by the Company, countersigned by the
transfer agent therefor and duly delivered upon such conversion to the persons
entitled thereto, in accordance with the terms of such Senior Debt Securities,
(a) the Senior Debt Securities will constitute valid and legally binding
obligations of the Company under the laws of the State of New York, enforceable
in accordance with their terms, subject to bankruptcy, insolvency,
reorganization or other similar laws affecting the rights of creditors generally
and general principles of equity (whether applied by a court of law or equity),
and (b) if the Senior Debt Securities are convertible into Common Shares, the
Common Shares issuable upon conversion of the Senior Debt Securities will be
validly issued, fully paid and nonassessable.
4. With respect to the Subordinated Debt Securities, when (i) the
Subordinated Debt Indenture has been duly authorized, executed and delivered by
the Company, (ii) the issuance of the Subordinated Debt Securities and approval
of the final terms thereof have been duly authorized by the Company by
appropriate corporate action, (iii) the Subordinated Debt Securities, in the
form included in the Subordinated Debt Indenture filed as an exhibit to the
Registration Statement (with such changes or additions as permitted in the
Subordinated Debt Indenture), have been duly executed and delivered by the
Company and authenticated by the Subordinated Debt Trustee pursuant to the
Subordinated Debt Indenture, and delivered and paid for and (iv) if the
Subordinated Debt Securities are convertible into Common Shares, (x) the
issuance of such Common Shares has been duly authorized by appropriate corporate
action, (y) the Subordinated Debt Securities are presented for conversion in
accordance with the terms thereof and (z) the certificates for such Subordinated
Debt Securities have been duly executed by the Company, countersigned by the
transfer agent therefor and duly delivered upon such conversion to the persons
entitled thereto, in accordance with the terms of such Subordinated Debt
Securities, (a) the Subordinated Debt Securities will constitute valid and
legally binding obligations of the Company under the laws of the State of New
York, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization or other similar laws affecting the rights of
creditors generally and general principles of equity (whether applied by a court
of law or equity), and (b) if the Subordinated Debt Securities are convertible
into Common Shares, the Common Shares issuable upon conversion of the
Subordinated Debt Securities will be validly issued, fully paid and
nonassessable.
5. With respect to the Warrants, when (i) the terms of the Warrant
Agreements under which certain of the Warrants are to be issued have been duly
established and duly authorized by the Company by the appropriate corporate
action and the Warrant Agreements have been duly executed and delivered, (ii)
the terms of such Warrants and of their issuance and sale have been duly
established in conformity with the applicable Warrant Agreement and applicable
law and (iii) such Warrants have been duly executed and authenticated in
accordance with the applicable Warrant Agreement and issued and sold as
contemplated in the Registration Statement, such Warrants will constitute valid
and legally binding obligations of the Company.
Amerada Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
Page 4
6. With respect to the Purchase Contracts, when (i) the terms of the
governing instruments or agreements under which certain of the Purchase
Contracts are to be issued have been duly established and duly authorized by the
Company by the appropriate corporate action and the governing documents have
been duly executed and delivered, (ii) the terms of such Purchase Contracts and
of their issuance and sale have been duly established in conformity with the
applicable governing documents and applicable law and (iii) such Purchase
Contracts have been duly executed and authenticated in accordance with the
applicable governing documents and issued and sold as contemplated in the
Registration Statement, such Purchase Contracts will constitute valid and
legally binding obligations of the Company.
7. With respect to the Depositary Shares, when (i) the terms of the Deposit
Agreements under which the Depositary Shares are to be issued have been duly
established and duly authorized by the Company by the appropriate corporate
action and the Deposit Agreements have been duly executed and delivered,
(ii) the terms of the Depositary Shares and of their issuance and sale have been
duly established in conformity with the applicable Deposit Agreements and
applicable law, when the Preferred Shares represented by the Depositary Shares
have been duly delivered to the applicable depositaries and (iii) the Depositary
Receipts evidencing the Depositary Shares have been duly issued against deposit
of the Preferred Shares in accordance with the applicable Deposit Agreements and
issued and sold as contemplated by the Registration Statement, the Depositary
Receipts evidencing the Depositary Shares will be validly issued and will
entitle the holders thereof to the rights specified in the Depositary Shares and
the applicable Deposit Agreements.
8. With respect to the Units, when (i) the terms of the Unit Agreements
under which certain of the Units are to be issued have been duly established and
duly authorized by the Company by the appropriate corporate action and the Unit
Agreements have been duly executed and delivered, (ii) the terms of such Units
and of their issuance and sale have been duly established in conformity with the
applicable Unit Agreements and applicable law and (iii) such Units have been
duly executed and authenticated in accordance with the applicable Unit
Agreements and issued and sold as contemplated in the Registration Statement,
such Units will constitute valid and legally binding obligations of the Company.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm appearing under the caption "Legal
Opinion" in the Prospectus forming part of the Registration Statement. In giving
this consent, we do not hereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ White & Case LLP
Amerada Hess Corporation
1185 Avenue of the Americas
New York, New York 10036
Page 5
KK: AI: SD
EXHIBIT 23
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement and related Prospectus of Amerada Hess Corporation, dated
March 1, 2006, for the registration of an unlimited amount of its Debt
Securities, Warrants, Common Stock, Preferred Stock Depository Shares, Purchase
Contracts and Units and to the incorporation by reference therein of our reports
dated February 21, 2005, with respect to the consolidated financial statements
and schedules of Amerada Hess Corporation, Amerada Hess Corporation management's
assessment of the effectiveness of internal control over financial reporting,
and the effectiveness of internal control over financial reporting of Amerada
Hess Corporation, included in its Annual Report (Form 10-K) for the year ended
December 31, 2004, filed with the Securities and Exchange Commission.
New York, NY
February 24, 2006
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------------------
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Pauline E. Higgins
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
707 Travis Street, 4th Floor North
Houston, Texas 77002
Tel: (713) 216-1436
(Name, address and telephone number of agent for service)
--------------------------------------------
AMERADA HESS
Delaware 13-4921002
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1185 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
------------------------------
Senior Debt Securities
------------------------------
- -------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------------------
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1111 Polaris Parkway
Columbus, Ohio 43271
(Address of principal executive offices) (Zip Code)
Pauline E. Higgins
Vice President and Assistant General Counsel
JPMorgan Chase Bank, National Association
707 Travis Street, 4th Floor North
Houston, Texas 77002
Tel: (713) 216-1436
(Name, address and telephone number of agent for service)
--------------------------------------------
AMERADA HESS
Delaware 13-4921002
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1185 Avenue of the Americas
New York, New York 10036
(Address of principal executive offices) (Zip Code)
------------------------------
Subordinated Debt Securities
------------------------------
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor and Guarantors.
If the obligor or any guarantor is an affiliate of the trustee,
describe each such affiliation.
None.
-2-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 24th day
of February, 2006.
JPMORGAN CHASE BANK, N.A.
By /s/ Francine Springer
--------------------------
/S/ Francine Springer
Vice President
-3-
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of JPMorgan Chase Bank, N.A.
(see Exhibit 1 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
2. A copy of the Certificate of Authority of the Comptroller of the
Currency for the trustee to commence business. (see Exhibit 2 to Form T-1 filed
in connection with Registration Statement No. 333-106575 which is incorporated
by reference).
3. None, the authority of the trustee to exercise corporate trust
powers being contained in the documents described in Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee. (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-106575 which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act.
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
333-106575 which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, JPMorgan Chase Bank, N.A., has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York and State of New York, on the 24th day
of February, 2006.
JPMORGAN CHASE BANK, N.A.
By /s/ Francine Springer
--------------------------
/S/ Francine Springer
Vice President
-4-
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
JPMorgan Chase Bank, N.A.
of 1111 Polaris Parkway, Columbus, Ohio 43240
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30,
2005, in accordance with a call made by the Federal
Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ......................................... $ 28,433
Interest-bearing balances ................................. 17,638
Securities:
Held to maturity securities..................................... 84
Available for sale securities................................... 55,133
Federal funds sold and securities purchased under
agreements to resell ......................................
Federal funds sold in domestic offices 24,468
Securities purchased under agreements to resell 167,210
Loans and lease financing receivables:
Loans and leases held for sale............................. 30,960
Loans and leases, net of unearned income $360,848
Less: Allowance for loan and lease losses 4,895
Loans and leases, net of unearned income and
allowance ................................................. 355,953
Trading Assets ................................................. 229,642
Premises and fixed assets (including capitalized leases)........ 8,279
Other real estate owned ........................................ 141
Investments in unconsolidated subsidiaries and
associated companies....................................... 794
Customers' liability to this bank on acceptances
outstanding ............................................... 738
Intangible assets
Goodwill................................................ 23,365
Other Intangible assets................................. 10,275
Other assets ................................................... 55,313
TOTAL ASSETS ................................................................ $1,008,426
==========
LIABILITIES
Deposits
In domestic offices ....................................... $389,235
Noninterest-bearing..................................$138,883
Interest-bearing .................................... 250,352
In foreign offices, Edge and Agreement
subsidiaries and IBF's..................................... 140,161
Noninterest-bearing..............................$ 6,800
Interest-bearing.................................... 133,361
Federal funds purchased and securities sold under agree-
ments to repurchase:
Federal funds purchased in domestic offices 8,435
Securities sold under agreements to repurchase 109,608
Trading liabilities ............................................ 131,588
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases).................. 82,712
Bank's liability on acceptances executed and outstanding........ 738
Subordinated notes and debentures .............................. 17,662
Other liabilities .............................................. 40,948
TOTAL LIABILITIES .............................................. 921,087
Minority Interest in consolidated subsidiaries ................. 2,249
EQUITY CAPITAL
Perpetual preferred stock and related surplus................... 0
Common stock ................................................... 1,785
Surplus (exclude all surplus related to preferred stock)....... 59,467
Retained earnings............................................... 24,523
Accumulated other comprehensive income.......................... (685)
Other equity capital components................................. 0
TOTAL EQUITY CAPITAL ........................................... 85,090
------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL $1,008,426
==========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
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 in- structions
issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON, JR. )
JAMES DIMON ) DIRECTORS
MICHAEL J. CAVANAGH )