<PAGE>
Original Electronically Transmitted to the Securities and Exchange Commission
on April 9, 1999
Registration No.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------
Union Pacific Corporation
(Exact name of issuer as specified in its charter)
Utah 13-2626465
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1717 Main Street
Suite 5900
Dallas, Texas 75201-4605
(214) 743-5600
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
Richard J. Ressler
Assistant General Counsel
Union Pacific Corporation
1717 Main Street
Suite 5900
Dallas, Texas 75201-4605
(214) 743-5600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------
Copies to:
William P. Rogers, Jr.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
---------------
Approximate date of commencement of proposed sale to the public. From time
to time after the effective date of this Registration Statement. 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 number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
Proposed Proposed
Title of Each Amount Maximum Maximum Amount of
Class of Securities to be Offering Price Aggregate Offering Registration
to be Registered Registered(1) Per Unit Price(1), (2) Fee(3)
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<S> <C> <C> <C> <C>
Debt Securities (4)....
Warrants to Purchase
Debt Securities.......
Preferred Stock, no par
value (5)............. $973,000,000 (1) $973,000,000 $270,494
Warrants to Purchase
Preferred Stock.......
Common Stock, par value
$2.50 per share (6)...
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</TABLE>
(1) In United States dollars or the equivalent thereof in foreign currency or
currency units. The amount registered represents the aggregate public
offering price received from the sale of the Debt Securities, Warrants to
Purchase Debt Securities, Preferred Stock, and Warrants to Purchase
Preferred Stock registered hereby, including any securities sold at a
discount, which will not exceed $973 million. No separate consideration
will be received for Common Stock, Preferred Stock or Debt Securities that
are issued upon conversion or exchange of Preferred Stock or Debt
Securities.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) A filing fee of $7,965 was previously paid in connection with $27,000,000
of securities registered under the Company's Registration Statement on Form
S-3 (No. 333-54009) and with respect to which this Registration Statement
amends such previous Registration Statement.
(4) Such indeterminate amount of Debt Securities as may from time to time be
issued at indeterminate prices or issuable upon conversion or exchange of
Debt Securities or Preferred Stock, to the extent such Debt Securities or
Preferred Stock are, by their terms, convertible into or exchangeable for
Debt Securities, or upon the exercise of Warrants to Purchase Debt
Securities.
(5) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued at indeterminate prices or issuable upon conversion or
exchange of Debt Securities or Preferred Stock, to the extent such Debt
Securities or Preferred Stock are, by their terms, convertible into or
exchangeable for shares of Preferred Stock, or upon the exercise of
Warrants to purchase Preferred Stock.
(6) Such indeterminate number of shares of Common Stock as may from time to
time be issuable upon conversion or exchange of Debt Securities or shares
of Preferred Stock, to the extent any of such Debt Securities or Preferred
Stock are, by their terms, convertible into or exchangeable for shares of
Common Stock.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus and
Prospectus Supplements included in this Registration Statement also relate to
the Debt Securities, Warrants to Purchase Debt Securities, Preferred Stock,
Warrants to Purchase Preferred Stock and Common Stock previously registered
under the Company's Registration Statement on Form S-3 (No. 333-54009). This
Registration Statement constitutes Post-Effective Amendment No. 1 to the
Company's Registration Statement on Form S-3 (No. 333-54009).
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The Information in this Prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This Prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, April 9, 1999
[LOGO OF UNION PACIFIC CORPORATION APPEARS HERE]
$1,000,000,000
Debt Securities
Preferred Stock
Securities Warrants
-----------
Union Pacific Corporation may sell from time to time, in one or more
offerings:
. Debt Securities
. Preferred Stock
. Warrants for Debt Securities or Preferred Stock
Debt Securities and Preferred Stock may be convertible into Debt Securities,
Preferred Stock or Common Stock.
The total offering price of these securities, in the aggregate, will not
exceed $1,000,000,000. We will provide specific terms of these securities in
supplements to this Prospectus. You should read this Prospectus and any
supplement to this Prospectus carefully before you invest.
We may offer the securities directly or through underwriters, agents or
dealers. The supplements to this Prospectus will designate the terms of our
plan of distribution. The discussion under the heading "Plan Of Distribution"
provides more information on this topic.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this Prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
This Prospectus is dated April 9, 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About This Prospectus...................................................... 3
Where You Can Find More Information........................................ 3
Incorporation By Reference................................................. 3
The Company................................................................ 4
Forward-Looking Statements................................................. 5
Ratio of Earnings to Fixed Charges......................................... 5
Use of Proceeds............................................................ 5
Description of Debt Securities............................................. 6
Description of Preferred Stock............................................. 14
Description of Common Stock................................................ 17
Description of Securities Warrants......................................... 18
Plan of Distribution....................................................... 20
Legal Opinions............................................................. 21
Experts.................................................................... 21
</TABLE>
2
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a shelf registration statement that Union Pacific
Corporation ("we" or "the Company") filed with the Securities and Exchange
Commission. Under this shelf registration statement, we may sell any
combination of the securities described in this prospectus in one or more
offerings up to a total dollar amount of $1,000,000,000. For further
information about our business and the securities, you should refer to this
registration statement and its exhibits. The exhibits to the registration
statement contain the full text of certain contracts and other important
documents summarized in this prospectus. Because these summaries may not
contain all the information that you may find important in deciding whether to
purchase the securities we may offer, you should review the full text of these
documents. You can obtain the registration statement from the SEC as indicated
under the heading "Where You Can Find More Information."
This prospectus provides you with a general description of the securities we
may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the
heading "Where You Can Find More Information."
You should rely only on the information contained or incorporated by
reference in this prospectus and the prospectus supplement. We have not
authorized anyone to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely on it. This
prospectus and the prospectus supplement may only be used where it is legal to
offer the securities. The information in this prospectus, as well as
information we have previously filed with the SEC and incorporated by reference
in this prospectus, is accurate only as of the date on the front cover of this
prospectus. Our business, financial condition, results of operations and
prospects may have changed since that date.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the SEC. Our
SEC filings are available at the SEC's website on the World Wide Web at
http://www.sec.gov. You may also read and copy any document we file with the
SEC at the public reference facilities maintained by the SEC at Room 1024, 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549 and at the SEC's
regional offices in New York, Seven World Trade Center, 13th Floor, New York,
New York 10048, and Chicago, Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. You may call the SEC at 1-800-SEC-0330 for more
information about the public reference rooms and their copy charges. Our common
stock is listed and traded on the New York Stock Exchange. You may also inspect
the information we file with the SEC at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION BY REFERENCE
The SEC requires us to "incorporate by reference" certain information we
file with them, which means that we will disclose important information to you
by referring you to those documents. The information incorporated by reference
is an important part of this prospectus. Any information that we file with the
SEC after the date of this prospectus as part of an incorporated document will
automatically update and supersede information contained in this prospectus.
We incorporate by reference the documents listed below:
Our Annual Report on Form 10-K for the fiscal year ended December 31, 1998;
and
Our Current Report on Form 8-K dated January 21, 1999.
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<PAGE>
We also incorporate by reference any filings made 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 but before the end of the offering made by this
prospectus.
You may request a copy of any filings referred to above, excluding exhibits,
at no cost, by contacting us at the following address: Union Pacific
Corporation, 1717 Main Street, Suite 5900, Dallas, Texas 75201-4605, Attention:
Corporate Secretary (telephone 214-743-5600).
THE COMPANY
We operate primarily in the areas of rail transportation, through our
subsidiary Union Pacific Railroad Company ("UPRR"), and trucking, through our
subsidiary Overnite Transportation Company ("Overnite"). We completed the sale
of our contract logistics and supply chain management subsidiary in November
1998. Union Pacific Corporation was incorporated in Utah in 1969.
Rail Transportation
UPRR is the largest rail system in the United States, operating nearly
34,000 route miles linking Pacific Coast and Gulf Coast ports to the Midwest
and eastern U.S. gateways, and providing several north/south corridors to key
Mexican gateways. UPRR serves the western two-thirds of the country and
maintains coordinated schedules with other carriers for the handling of freight
to and from the Atlantic Coast, the Pacific Coast, the Southeast, the
Southwest, Canada and Mexico. Major categories of freight hauled by UPRR are
agricultural products, automotive products, chemicals, energy (primarily coal),
industrial products and intermodal.
Since 1995, we have significantly expanded our rail operations, completing
acquisitions of Chicago and North Western Transportation Company and Southern
Pacific Transportation Company and their respective affiliated railroads. We
also acquired a 13% indirect ownership interest in a 50-year concession for the
Pacific-North and Chihuahua Pacific rail lines in Mexico and, in March 1999, we
acquired an additional 13% interest.
Trucking
Overnite, a major interstate trucking company specializing in less-than-
truckload shipments, serves all 50 states and portions of Canada and Mexico
through 165 service centers located throughout the United States. Overnite
transports a variety of products, including machinery, tobacco, textiles,
plastics, electronics and paper products.
Executive Offices
Our executive offices are located at 1717 Main Street, Suite 5900, Dallas,
Texas 75201-4605, and our telephone number is (214) 743-5600.
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<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus, including documents incorporated by reference, contains
forwarding-looking statements as defined by the Securities Act of 1933 and the
Securities Exchange Act of 1934. These forward-looking statements may include,
without limitation, statements that we do not expect that claims, lawsuits,
environmental costs, commitments, contingent liabilities, labor negotiations or
other matters will have a material adverse effect on our consolidated financial
condition, results of operations or liquidity and other similar expressions
concerning matters that are not historical facts, and projections or
predictions as to our financial or operational results. Forward-looking
information is based on facts available at the time and is subject to risks and
uncertainties that could cause actual results to differ materially from those
expressed in the statements. Important factors that could cause differences
include, but are not limited to: whether we are fully successful in recovering
from the effects of UPRR's congestion-related problems and implementing UPRR's
financial and operational initiatives; industry competition and legislative
and/or regulatory developments; natural events such as severe weather, floods
and earthquakes; the effects of adverse general economic conditions; changes in
fuel prices; labor strikes; the impact of year 2000 systems problems; and the
ultimate outcome of shipper claims related to congestion, environmental
investigations or proceedings and other types of claims and litigations. We
assume no obligation to update forward-looking information to reflect actual
results, changes in assumptions or changes in other factors affecting forward-
looking information.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the ratio of earnings to fixed charges on a
historical basis for each of the five years ended December 31, 1998.
<TABLE>
<CAPTION>
Year Ended December 31
---------------------------
1994 1995 1996 1997 1998(a)
---- ---- ---- ---- -------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges............... 3.2 2.8 2.7 1.8 0.2
</TABLE>
- --------
(a) For the fiscal year ended December 31, 1998, fixed charges exceeded
earnings by approximately $740 million. Excluding the impact of a one-time
goodwill charge of $547 million pre- and after-tax in 1998, the ratio of
earnings to fixed charges would have been 0.8.
The ratio of earnings to fixed charges has been computed on a total
enterprise basis. Earnings represent income from continuing operations less
equity in undistributed earnings of unconsolidated affiliates, plus income
taxes and fixed charges. Fixed charges represent interest, amortization of debt
discount and expense and the estimated interest portion of rental charges.
USE OF PROCEEDS
Unless otherwise specified in a prospectus supplement, the net proceeds from
the sale of the securities offered by this prospectus will be used for general
corporate purposes, including repayment of borrowings, working capital, capital
expenditures, stock repurchase programs and acquisitions. Additional
information on the use of net proceeds from the sale of offered securities will
be described in a prospectus supplement relating to those securities.
5
<PAGE>
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms of the Debt Securities to which any
Prospectus Supplement may relate. A Prospectus Supplement will describe the
terms relating to any Debt Securities to be offered in greater detail, and may
provide information that is different from this Prospectus. If the information
in the Prospectus Supplement with respect to the particular Debt Securities
being offered differs from this Prospectus, you should rely on the information
in the Prospectus Supplement.
The Debt Securities will be issued under one or more Indentures. We have
entered into, or will enter into, separate indentures with each of Citibank,
N.A., as trustee, and The Chase Manhattan Bank, as trustee. Copies of those
indentures have been filed as exhibits to the registration statement.
Alternatively, we may choose another trustee, who will be identified in a
Prospectus Supplement relating to the particular Debt Securities being offered
(the "Trustee").
Summaries of some of the provisions of the Indentures follow. The particular
provisions of the Indentures and terms defined in the Indentures referred to
below are incorporated by reference in this Prospectus. Capitalized terms used
in this section and not defined have the definitions given to them in the
Indentures.
General
The Debt Securities may be either senior securities or subordinated
securities, and will be unsecured unless the Company is required to secure the
Debt Securities as described below under "Covenants." The Indentures permit an
unlimited amount of Debt Securities, and Debt Securities may be issued up to
the aggregate principal amount which may be authorized from time to time by the
Company. (Section 301) Debt Securities will be issued from time to time and
offered on terms determined by market conditions at the time of sale.
Senior securities will be unsecured and will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. Subordinated
securities will be unsecured and will be subordinated and junior to all "senior
indebtedness," which for this purpose includes any senior securities, to the
extent provided in the applicable supplemental Indenture and described in the
Prospectus Supplement relating to that series.
The Debt Securities may be issued in one or more series with the same or
various maturities at par, at a premium or at a discount. Any Debt Securities
bearing no interest or interest at a rate which at the time of issuance is
below market rates will be sold at a discount, which may be substantial, from
their stated principal amount. Federal income tax consequences and other
special considerations applicable to any such substantially discounted Debt
Securities will be described in the related Prospectus Supplement.
You should refer to the Prospectus Supplement relating to the Debt
Securities to be offered for the following terms of the Debt Securities:
. The designation, aggregate principal amount and authorized denominations
of such Debt Securities;
. The percentage of their principal amount at which such Debt Securities
will be issued;
. The date or dates on which the Debt Securities will mature;
. The rate or rates, which may be fixed or floating, per annum at which
the Debt Securities will bear interest, if any, or the method of
determining such rate or rates;
. The date or dates on which any such interest will be payable, the date
or dates on which payment of any such interest will commence and the
Regular Record Dates for such Interest Payment Dates;
. Whether such Debt Securities are senior securities or subordinated
securities;
. The terms of any mandatory or optional redemption or repayment option,
including any provisions for any sinking, purchase or other analogous
fund;
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<PAGE>
. The currency, currencies or currency units for which the Debt Securities
may be purchased and the currency, currencies or currency units in which
the principal thereof, any premium thereon and any interest thereon may
be payable;
. If the currency, currencies or currency units for which the Debt
Securities may be purchased or in which the principal thereof, any
premium thereon and any interest thereon may be payable is at the
election of the Company or the purchaser, the manner in which such
election may be made;
. If the amount of payments on the Debt Securities is determined with
reference to an index based on one or more currencies or currency units,
changes in the price of one or more securities or changes in the price
of one or more commodities, the manner in which such amounts may be
determined;
. The extent to which any of the Debt Securities will be issuable in
temporary or permanent global form, or the manner in which any interest
payable on a temporary or permanent Global Security will be paid;
. The terms and conditions upon which conversion or exchange of the Debt
Securities into or for Common Stock, Preferred Stock or other Debt
Securities will be effected, including the conversion price or exchange
ratio, the conversion or exchange period and any other conversion or
exchange provisions;
. Information with respect to book-entry procedures, if any;
. A discussion of certain Federal income tax, accounting and other special
considerations, procedures and limitations with respect to the Debt
Securities; and
. Any other specific terms of the Debt Securities not inconsistent with
the Indenture.
If any of the Debt Securities are sold for one or more foreign currencies or
foreign currency units or if the principal of, premium, if any, or any interest
on any series of Debt Securities is payable in one or more foreign currencies
or foreign currency units, the restrictions, elections, Federal income tax
consequences, specific terms and other information with respect to such issue
of Debt Securities and such currencies or currency units will be described in
the related Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, the principal of,
any premium on, and any interest on the Debt Securities will be payable, and
the Debt Securities will be transferable, at the Corporate Trust Office of the
trustee in New York, New York, provided that payment of interest, if any, may
be made at the option of the Company by check mailed on or before the payment
date, first class mail, to the address of the person entitled thereto as it
appears on the registry books of the Company or its agent.
Unless otherwise specified in the Prospectus Supplement, the Debt Securities
will be issued only in fully registered form and in denominations of $1,000 and
any integral multiple thereof. (Sections 301 and 302) No service charge will be
made for any transfer or exchange of any Debt Securities, but the Company may,
except in certain specified cases not involving any transfer, require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. (Section 305).
Global Securities
The Debt Securities of a series may be issued, in whole or in part, in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a depositary identified in the Prospectus Supplement relating to such
series. Global Securities may be issued only in fully registered form and in
either temporary or permanent form. Unless and until it is exchanged in whole
or in part for the individual Debt Securities represented thereby, a Global
Security may not be transferred except as a whole by the depositary for such
Global Security to a nominee of such depositary or by a nominee of such
depositary to such depositary or another nominee of such depositary or by the
depositary or any nominee of such depositary to a successor depositary or any
nominee of such successor.
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The specific terms of the depositary arrangement with respect to a series of
Debt Securities will be described in the related Prospectus Supplement. We
anticipate that the following provisions will generally apply to depositary
arrangements.
Upon the issuance of a Global Security, the depositary for such Global
Security or its nominee will credit, on its book entry registration and
transfer system, the respective principal amounts of the individual Debt
Securities represented by such Global Security to the accounts of persons that
have accounts with such depositary. Such accounts shall be designated by the
dealers, underwriters or agents with respect to such Debt Securities or by the
Company if such Debt Securities are offered and sold directly by the Company.
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the applicable depositary ("participants") or
persons that may hold interests through participants. Ownership of beneficial
interests in such Global Security will be shown on, and the transfer of that
ownership will be effected only through records maintained by the applicable
depositary or its nominee, with respect to interests of participants, and the
records of participants, with respect to interests of persons other than
participants. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests in
a Global Security.
So long as the depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have any of the individual Debt Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of any such Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture governing such Debt Securities.
Payments of principal of, any premium on, and any interest on, individual
Debt Securities represented by a Global Security registered in the name of a
depositary or its nominee will be made to the Depositary or its nominee, as the
case may be, as the registered owner of the Global Security representing such
Debt Securities. Neither the Company, the trustee for such Debt Securities, any
Paying Agent, nor the Security Registrar for such Debt Securities will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of the Global
Security for such Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal, premium or interest in
respect of a permanent Global Security representing any of such Debt
Securities, immediately will credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security for such Debt Securities as shown on the records
of such depositary or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers in bearer form or registered in "street name." Such payments will
be the responsibility of such participants.
If the depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is
not appointed by the Company within 90 days, the Company will issue individual
Debt Securities of such series in exchange for the Global Security representing
such series of Debt Securities. In addition, the Company may at any time and in
its sole discretion, subject to any limitations described in the Prospectus
Supplement relating to such Debt Securities, determine not to have any Debt
Securities of a series represented by one or more Global Securities and, in
such event, will issue individual Debt Securities of such series in exchange
for the Global Security or Securities representing such series of Debt
Securities. Further, if the Company so specifies with respect to the Debt
Securities of a series, an owner of a beneficial interest in a Global Security
representing Debt Securities of such series may, on terms acceptable to the
Company, the Trustee and the Depositary for such Global Security, receive
individual Debt Securities of
8
<PAGE>
such series in exchange for such beneficial interests, subject to any
limitations described in the Prospectus Supplement relating to such Debt
Securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery of individual Debt Securities of
the series represented by such Global Security equal in principal amount to
such beneficial interest and to have such Debt Securities registered in its
name. Individual Debt Securities of such series so issued will be issued in
denominations, unless otherwise specified by the Company, of $1,000 and
integral multiples thereof.
Senior Securities
The senior securities will be direct, unsecured obligations of the Company,
and will constitute Senior Indebtedness (in each case as defined in the
applicable supplemental Indenture) ranking on a parity with all other unsecured
and unsubordinated indebtedness of the Company.
Subordinated Securities
The subordinated securities will be direct, unsecured obligations of the
Company. The obligations of the Company pursuant to the subordinated securities
will be subordinate in right of payment to the extent set forth in the
Indenture and the applicable supplemental Indenture to all Senior Indebtedness,
including all senior securities (in each case as defined in the applicable
supplemental Indenture). Except to the extent otherwise set forth in a
Prospectus Supplement, the Indenture does not contain any restriction on the
amount of Senior Indebtedness which the Company may incur.
The terms of the subordination of a series of subordinated securities,
together with the definition of Senior Indebtedness related thereto, will be as
set forth in the applicable supplemental Indenture and the Prospectus
Supplement relating to such series.
The subordinated securities will not be subordinated to indebtedness of the
Company which is not Senior Indebtedness, and the creditors of the Company who
do not hold Senior Indebtedness will not benefit from the subordination
provisions described herein. In the event of the bankruptcy or insolvency of
the Company before or after maturity of the subordinated securities, such other
creditors would rank pari passu with holders of the subordinated securities,
subject, however, to the broad equity powers of the Federal bankruptcy court
pursuant to which such court may, among other things, reclassify the claims of
any series of Subordinated Securities into a class of claims having a different
relative priority with respect to the claims of such other creditors or any
other claims against the Company.
Definitions
Some of the terms defined in Section 101 of the Indenture are summarized
below.
"Debt" means indebtedness for money borrowed.
"Domestic Subsidiary" means a Subsidiary incorporated or conducting its
principal operations within the United States or any State thereof.
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or security
interest of any kind.
"Subsidiary," when used with respect to the Company, means any corporation
of which a majority of the outstanding voting stock is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or both.
Covenants
The Indenture contains certain covenants, including the limitation on liens
covenant summarized below which will be applicable, unless waived or amended,
so long as any of the Debt Securities are outstanding, unless stated otherwise
in the Prospectus Supplement.
9
<PAGE>
Limitation on Liens. The Company will not, nor will it permit any Subsidiary
to, create, assume, incur or suffer to exist any Mortgage upon any stock or
indebtedness, whether owned on the date of the Indenture or thereafter
acquired, of any Domestic Subsidiary to secure any Debt of the Company or any
other person (other than the Debt Securities), without in any such case making
effective provision whereby all the outstanding Debt Securities shall be
directly secured equally and ratably with such Debt. There will be excluded
from this restriction any Mortgage upon stock or indebtedness of a corporation
existing at the time such corporation becomes a Domestic Subsidiary or at the
time stock or indebtedness of a Domestic Subsidiary is acquired and any
extension, renewal or replacement of any such Mortgage. (Section 1006)
Consolidation, Merger, Sale or Conveyance
The Indenture provides that the Company may not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any person, unless:
. The successor is a corporation organized and existing under the laws of
the United States or any state thereof or the District of Columbia, and
expressly assumes by a supplemental indenture the due and punctual
payment of the principal of, any premium on, and any interest on, all
the outstanding Debt Securities and the performance of every covenant in
the Indenture on the part of the Company to be performed or observed;
. Immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
and
. The Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with the
foregoing provisions relating to such transaction.
(Section 801) In case of any such consolidation, merger, conveyance or
transfer, such successor corporation will succeed to and be substituted for the
Company as obligor on the Debt Securities, with the same effect as if it had
been named in the Indenture as the Company. (Section 802) Other than the
restrictions on Mortgages described above, the Indenture and the Debt
Securities do not contain any covenants or other provisions designed to protect
holders of Debt Securities in the event of a highly leveraged transaction
involving the Company or any Subsidiary.
Events of Default; Waiver and Notice Thereof; Debt Securities in Foreign
Currencies
As to any series of Debt Securities, an Event of Default is defined in the
Indenture as:
1. Default for 30 days in payment of any interest on the Debt Securities of
such series;
2. Default in payment of principal of or any premium on the Debt Securities
of such series at maturity;
3. Default in payment of any sinking or purchase fund or analogous
obligation, if any, on the Debt Securities of such series;
4. Default by the Company in the performance of any other covenant or
warranty contained in the Indenture for the benefit of such series which
shall not have been remedied for a period of 90 days after notice is
given as specified in the Indenture; and
5. Certain events of bankruptcy, insolvency and reorganization of the
Company.
(Section 501) A default under other indebtedness of the Company will not be a
default under the Indenture and a default under one series of Debt Securities
will not necessarily be a default under another series. Any additions,
deletions or other changes to the Events of Default which will be applicable to
a series of Debt Securities will be described in the Prospectus Supplement
relating to such series of Debt Securities.
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The Indenture provides that if an Event of Default described in clause (1),
(2), (3) or (4) above (if the Event of Default under clause (4) is with respect
to less than all series of Debt Securities then outstanding) shall have
occurred and be continuing with respect to any series, either the trustee or
the holders of not less than 25% in aggregate principal amount of the Debt
Securities of such series then outstanding (each such series acting as a
separate class) may declare the principal (or, in the case of Original Issue
Discount Securities, the portion thereof specified in the terms thereof) of all
outstanding Debt Securities of such series and the interest accrued thereon, if
any, to be due and payable immediately. The Indenture provides that if an Event
of Default described in clause (4) or (5) above (if the Event of Default under
clause (4) is with respect to all series of Debt Securities then outstanding)
shall have occurred and be continuing, either the trustee or the holders of at
least 25% in aggregate principal amount of all Debt Securities then
outstanding, treated as one class, may declare the principal (or, in the case
of Original Issue Discount Securities, the portion thereof specified in the
terms thereof) of all Debt Securities then outstanding and the interest accrued
thereon, if any, to be due and payable immediately. Upon certain conditions,
such declarations may be annulled and past defaults (except for defaults in the
payment of principal of, any premium on, or any interest on, such Debt
Securities and in compliance with certain covenants) may be waived by the
holders of a majority in aggregate principal amount of the Debt Securities of
such series then outstanding. (Sections 502 and 513)
Under the Indenture, the trustee must give to the holders of each series of
Debt Securities notice of all uncured defaults known to it with respect to such
series within 90 days after such a default occurs (the term default to include
the events specified above without notice or grace periods). However, except in
the case of default in the payment of principal of, any premium on, or any
interest on, any of the Debt Securities, or default in the payment of any
sinking or purchase fund installment or analogous obligations, the Trustee
shall be protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interests of the holders of the
Debt Securities of such series. (Section 602)
No holder of any Debt Securities of any series may institute any action
under the Indenture unless:
. Such holder shall have given the Trustee written notice of a continuing
Event of Default with respect to such series;
. The holders of not less than 25% in aggregate principal amount of the
Debt Securities of such series then outstanding shall have requested the
Trustee to institute proceedings in respect of such Event of Default;
. Such holder or holders shall have offered the Trustee such reasonable
indemnity as the Trustee may require;
. The Trustee shall have failed to institute an action for 60 days
thereafter; and
. No inconsistent direction shall have been given to the Trustee during
such 60-day period by the holders of a majority in aggregate principal
amount of Debt Securities of such series. (Section 507)
The holders of a majority in aggregate principal amount of the Debt
Securities of any series affected and then outstanding will have the right,
subject to certain limitations, 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 such series of Debt
Securities. (Section 512) The Indenture provides that, in case an Event of
Default shall occur and be continuing, the trustee, in exercising its rights
and powers under the Indenture, will be required to use the degree of care of a
prudent man in the conduct of his own affairs. (Section 601) The Indenture
further provides that the trustee shall not be required to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties under the Indenture unless it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is reasonably assured to it. (Section 601)
The Company must furnish to the Trustee within 120 days after the end of
each fiscal year a statement signed by one of certain officers of the Company
stating that a review of the activities of the Company during such year and of
its performance under the Indenture and the terms of the Debt Securities has
been made, and, to
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the best of the knowledge of the signatory based on such review, the Company
has complied with all conditions and covenants of the Indenture or, if the
Company is in default, specifying such default. (Section 1004)
If any Debt Securities are denominated in a coin or currency other than that
of the United States, then for the purposes of determining whether the holders
of the requisite principal amount of Debt Securities have taken any action as
herein described, the principal amount of such Debt Securities shall be deemed
to be that amount of United States dollars that could be obtained for such
principal amount on the basis of the spot rate of exchange into United States
dollars for the currency in which such Debt Securities are denominated (as
evidenced to the Trustee by an Officers' Certificate) as of the date the taking
of such action by the holders of such requisite principal amount is evidenced
to the trustee as provided in the Indenture. (Section 104)
If any Debt Securities are Original Issue Discount Securities, then for the
purposes of determining whether the holders of the requisite principal amount
of Debt Securities have taken any action herein described, the principal amount
of such Debt Securities shall be deemed to be the portion of such principal
amount that would be due and payable at the time of the taking of such action
upon a declaration of acceleration of maturity thereof. (Section 101)
Modification of the Indenture
The Company and the Trustee may, without the consent of the holders of the
Debt Securities (provided that in the case of clauses (2), (3), (4) and (6),
the interests of the holders of Debt Securities would not be adversely
affected), enter into indentures supplemental to the Indenture for, among
others, one or more of the purposes listed below:
1. To evidence the succession of another corporation to the Company, and
the assumption by such successor of the Company's obligations under the
Indenture and the Debt Securities of any series;
2. To add covenants of the Company, or surrender any rights of the Company,
conferred by the Indenture, for the benefit of the holders of Debt
Securities of any or all series;
3. To cure any ambiguity, omission, defect or inconsistency in or make any
other provision with respect to questions arising under the Indenture.
4. To establish the form or terms of any series of Debt Securities,
including any subordinated securities;
5. To evidence and provide for the acceptance of any successor Trustee with
respect to one or more series of Debt Securities or to facilitate the
administration of the trusts thereunder by one or more trustees in
accordance with such Indenture; and
6. To provide any additional Events of Default. (Section 901)
The Indenture or the rights of the holders of the Debt Securities may be
modified by the Company and the trustee with the consent of the holders of a
majority in aggregate principal amount of the Debt Securities of each series
affected by such modification then outstanding, but no such modification may be
made without the consent of the holder of each outstanding Debt Security
affected thereby which would:
. Change the maturity of any payment of principal of, or any premium on,
or any installment of interest on any Debt Security, or reduce the
principal amount thereof or the interest or any premium thereon, or
change the method of computing the amount of principal thereof or
interest thereon on any date or change any place of payment where, or
the coin or currency in which, any Debt Security or any premium or
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the maturity thereof,
or, in the case of redemption or repayment, on or after the redemption
date or the repayment date, as the case may be;
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. Reduce the percentage in principal amount of the outstanding Debt
Securities of any series, the consent of whose holders is required for
any such modification, or the consent of whose holders is required for
any waiver of compliance with certain provisions of the Indenture or
certain defaults thereunder and their consequences provided for in the
Indenture; or
. Modify any of the provisions of certain sections of the Indenture,
including the provisions summarized in this paragraph, 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 Debt Security affected thereby. (Section 902)
Defeasance of the Indenture and Debt Securities
If the terms of any series of Debt Securities so provide, the Company will
be deemed to have paid and discharged the entire indebtedness on all the
outstanding Debt Securities of such series by depositing with the Trustee:
(1) As trust funds in trust an amount sufficient to pay and discharge the
entire indebtedness on all Debt Securities of such series for
principal, premium, if any, and interest; or
(2) As obligations in trust such amount of direct obligations of, or
obligations the principal of and interest on which are fully guaranteed
by, the government which issued the currency in which the Debt
Securities are denominated as will, together with the income to accrue
thereon without consideration of any reinvestment thereof, be
sufficient to pay and discharge the entire indebtedness on all such
Debt Securities for principal, premium, if any, and interest, and
satisfying certain other conditions precedent specified in the
Indenture.
(Section 403) In the event of any such defeasance, holders of such Debt
Securities would be able to look only to such trust fund for payment of
principal of, any premium on, and any interest on their Debt Securities.
A defeasance is likely to be treated as a taxable exchange by holders of the
relevant Debt Securities for an issue consisting of either obligations of the
trust or a direct interest in the cash and securities held in the trust, with
the result that such holders would be required for tax purposes to recognize
gain or loss as if such obligations or the cash or securities deposited, as the
case may be, had actually been received by them in exchange for their Debt
Securities. In addition, if the holders are treated as the owners of their
proportionate share of the cash or securities held in trust, such holders would
then be required to include in their income for tax purposes any income, gain
or loss attributable thereto even though no cash was actually received. Thus,
such holders might be required to recognize income for tax purposes in
different amounts and at different times than would be recognized in the
absence of defeasance. Prospective investors are urged to consult their own tax
advisors as to the specific consequences of defeasance.
Concerning the Trustees
Citibank, N.A. and The Chase Manhattan Bank conduct normal banking
relationships with us and certain of our subsidiaries and, in addition, are
participants in various of our financial agreements. Citibank, N.A. and The
Chase Manhattan Bank act as trustee under certain equipment trust agreements of
UPRR and trustee under various indentures in respect of certain of our
securities and our subsidiaries' securities.
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DESCRIPTION OF PREFERRED STOCK
This section describes the general terms of the Preferred Stock to which any
Prospectus Supplement may relate. A Prospectus Supplement will describe the
terms relating to any Preferred Stock to be offered in greater detail, and may
provide information that is different from this Prospectus. If the information
in the Prospectus Supplement with respect to the particular Preferred Stock
being offered differs from this Prospectus, you should rely on the information
in the Prospectus Supplement.
Summaries of some of the provisions of our Revised Articles of Incorporation
follow. A copy of the Revised Articles of Incorporation has been filed as an
exhibit to the registration statement. A certificate of amendment to the
Revised Articles of Incorporation will specify the terms of the Preferred Stock
being offered, and will be filed as an exhibit to the registration statement or
incorporated by reference before the Preferred Stock is issued.
The Revised Articles of Incorporation authorize us to issue up to 20,000,000
shares of Preferred Stock, without par value. No shares of Preferred Stock are
currently outstanding, and no shares are reserved for issuance. The Board of
Directors is authorized to issue Preferred Stock in one or more series from
time to time, with such designations, preferences and relative participating,
optional or other special rights and qualifications, limitations and
restrictions thereof, as may be provided in resolutions adopted by the Board of
Directors. All shares of any one series of Preferred Stock will be identical,
except that shares of any one series issued at different times may differ as to
the dates from which dividends may be cumulative. All series shall rank equally
and shall provide for other terms as described in the applicable Prospectus
Supplement.
Preferred Stock of a particular series will have the dividend, liquidation,
redemption, conversion and voting rights described below unless otherwise
provided in the Prospectus Supplement relating to that series. You should refer
to the Prospectus Supplement relating to Preferred Stock being offered for a
description of specific terms, including:
. The distinctive serial designation and the number of shares constituting
the series;
. The dividend rate or rates, the payment date or dates for dividends and
the participating or other special rights, if any, with respect to
dividends;
. Any redemption, sinking fund or other analogous provisions applicable to
the Preferred Stock;
. The amount or amounts payable upon the shares of Preferred Stock in the
event of voluntary or involuntary liquidation, dissolution or winding up
of the Company prior to any payment or distribution of the assets of the
Company to the holders of any class or classes of stock which are junior
in rank to the Preferred Stock;
. Any terms for the conversion into or exchange for shares of Common
Stock, shares of Preferred Stock or Debt Securities; and
. Any other specific terms of the Preferred Stock not inconsistent with
the Company's Revised Articles of Incorporation and any previously filed
certificate of amendment.
The term "class or classes of stock which are junior in rank to the
Preferred Stock" means the Company's Common Stock, and any other class or
classes of stock of the Company hereafter authorized which rank junior to the
Preferred Stock as to dividends or upon liquidation.
Dividends
Holders of Preferred Stock will be entitled to receive, when, as and if
declared by the Board of Directors out of funds of the Company legally
available therefor, cash dividends payable on such dates in March, June,
September and December of each year and at such rates per share per annum as
set forth in the applicable Prospectus Supplement. The Prospectus Supplement
will also indicate the applicable record dates regarding the payment of
dividends. The holders of Preferred Stock will be entitled to such cash
dividends before any
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dividends on any class of stock junior in rank to Preferred Stock shall be
declared or paid or set apart for payment. Whenever dividends shall not have
been so paid or declared or set apart for payment upon all shares of each
series of Preferred Stock, such dividends shall be cumulative and shall be
paid, or declared and set apart for payment, before any dividends can be
declared or paid on any class or classes of stock of the Company junior in rank
to the Preferred Stock. Any such accumulations of dividends on Preferred Stock
shall not bear interest. The foregoing shall not apply to dividends payable in
shares of any class or classes of stock junior in rank to the Preferred Stock.
Convertibility
No series of Preferred Stock will be convertible into, or exchangeable for,
shares of Common Stock, shares of Preferred Stock or any other class or classes
of stock of the Company or Debt Securities except as set forth in the related
Prospectus Supplement.
Redemption and Sinking Fund
No series of Preferred Stock will be redeemable or receive the benefit of a
sinking, retirement or other analogous fund except as set forth in the related
Prospectus Supplement.
Liquidation Rights
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, holders of any series of Preferred Stock will be entitled to
receive payment of or to have set aside for payment the liquidation amount per
share, if any, specified in the related Prospectus Supplement, in each case
together with any applicable accrued and unpaid dividends, before any
distribution to holders of Common Stock or any class of stock junior in rank to
the Preferred Stock. A voluntary sale, lease, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or substantially all
of the Company's property or assets to, or a consolidation or merger of the
Company with, one or more corporations shall not be deemed to be a liquidation,
dissolution or winding up of the Company for purposes of this paragraph.
Voting Rights
Except as provided below, holders of Preferred Stock shall be entitled to
one vote for each share held and shall vote together with the holders of Common
Stock as one class for the election of directors and upon all other matters
which may be voted upon by stockholders of the Company. Holders of Preferred
Stock shall not possess cumulative voting rights in the election of directors.
See "Description of Common Stock--Voting Rights" for a discussion of voting
rights in the election of directors.
If dividends on the Preferred Stock shall be in arrears in an aggregate
amount at least equal to six quarterly dividends, then the holders of all
series of Preferred Stock, voting separately as one class, shall be entitled,
at the next annual meeting of the stockholders of the Company or at a special
meeting held in place thereof, or at a special meeting of the holders of the
Preferred Stock called as provided below, to elect two directors of the
Company. While the holders of Preferred Stock are so entitled to elect two
directors of the Company, they shall not be entitled to participate with the
Common Stock in the election of any other directors. Whenever all arrearages in
dividends on the Preferred Stock shall have been paid and dividends thereon for
the current quarterly period shall have been paid or declared and a sum
sufficient for the payment thereof set aside, then the right of the holders of
the Preferred Stock to elect two directors shall cease, provided that such
voting rights shall again vest in the case of any similar future arrearages in
dividends.
At any time after the right to vote for two directors shall have so vested
in the Preferred Stock, the Secretary of the Company may, and upon the written
request of the holders of record of 10% or more of the shares of Preferred
Stock then outstanding, shall, call a special meeting of the holders of the
Preferred Stock for the election of the directors to be elected by them, to be
held within 30 days after such call and at the place
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and upon the notice provided by law and in the Company's bylaws for the holding
of meetings of stockholders. The Secretary shall not be required to call such
meeting in the case of any such request received less than 90 days before the
date fixed for any annual meeting of stockholders of the Company. If any such
special meeting shall not be called by the Secretary within 30 days after
receipt of any such request, then the holders of record of 10% or more of the
shares of Preferred Stock then outstanding may designate in writing one of
their number to call such meeting, and the person so designated may call such
meeting to be held at the place and upon the notice provided above, and for
that purpose shall have access to the stock ledger of the Company. No such
special meeting and no adjournment thereof shall be held on a date later than
30 days before the annual meeting of the stockholders of the Company or a
special meeting held in place thereof next succeeding the time when the holders
of the Preferred Stock become entitled to elect directors as provided above.
If any meeting of the Company's stockholders shall be held while holders of
Preferred Stock are entitled to elect two directors as provided above, and if
the holders of at least a majority of the shares of Preferred Stock then
outstanding shall be present or represented by proxy at such meeting or any
adjournment thereof, then, by vote of the holders of at least a majority of the
shares of Preferred Stock present or so represented at such meeting, the then
authorized number of directors of the Company shall be increased by two and at
such meeting the holders of the Preferred Stock shall be entitled to elect the
additional directors so provided for, but no such additional director so
elected shall hold office beyond the annual meeting of the stockholders or a
special meeting held in place thereof next succeeding the time when the holders
of the Preferred Stock become entitled to elect two directors as provided
above. Whenever the holders of the Preferred Stock shall be divested of special
voting power as provided above, the terms of office of all persons elected as
directors by the holders of the Preferred Stock as a class shall forthwith
terminate, and the authorized number of directors of the Company shall be
reduced accordingly.
The affirmative vote or consent of 66 2/3% of all shares of Preferred Stock
outstanding shall be required before the Company may:
. Create any other class or classes of stock prior in rank to the
Preferred Stock, either as to dividends or upon liquidation, or increase
the number of authorized shares of such class of stock; or
. Amend, alter or repeal any provisions of the Company's Revised Articles
of Incorporation or any resolution adopted by the Board of Directors
providing for the issuance of any series of Preferred Stock so as to
adversely affect the preferences, rights or powers of the Preferred
Stock.
The affirmative vote or consent of at least a majority of the shares of
Preferred Stock at the time outstanding shall be required for the Company to:
. Increase the authorized number of shares of Preferred Stock;
. Create or increase the authorized number of shares of any other class of
stock ranking on a parity with the Preferred Stock either as to
dividends or upon liquidation; or
. Sell, lease or convey all or substantially all of the property or
business of the Company, or voluntarily liquidate, dissolve or wind up
the Company, or merge or consolidate the Company with any other
corporation unless the resulting or surviving corporation will have
after such merger or consolidation no stock either authorized or
outstanding (except such stock of the corporation as may have been
authorized or outstanding immediately preceding such merger or
consolidation, or such stock of the resulting or surviving corporation
as may be issued in exchange therefor) prior in rank either as to
dividends or upon liquidation to the Preferred Stock or the stock of the
resulting or surviving corporation issued in exchange therefor.
No consent of the holders of Preferred Stock shall be required in connection
with any mortgaging or other hypothecation by the Company of all or any part of
its property or business.
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Transactions with Ten Percent Stockholders
The Company's Revised Articles of Incorporation provide that certain
transactions between the Company and a beneficial owner of more than 10% of the
Company's voting stock (which includes Preferred Stock) must either:
. Be approved by a majority of the Company's voting stock other than that
held by such beneficial owner;
. Satisfy minimum price and procedural criteria; or
. Be approved by a majority of the Company's directors who are not related
to such beneficial owner.
The transactions covered by these provisions include mergers,
consolidations, sales or dispositions of assets, adoption of a plan of
liquidation or dissolution, or other transactions increasing the proportionate
share of such 10% beneficial owner.
Miscellaneous
The Preferred Stock offered hereby has no preemptive rights, is not liable
for further assessments or calls and will be fully paid and non-assessable upon
issuance. Shares of Preferred Stock which have been issued and reacquired in
any manner by the Company shall resume the status of authorized and unissued
shares of Preferred Stock and shall be available for subsequent issuance. There
are no restrictions on repurchase or redemption of the Preferred Stock while
there is any arrearage in dividends or sinking fund installments except as may
be set forth in the related Prospectus Supplement.
Transfer Agent and Registrar
The transfer agent and registrar for each series of Preferred Stock will be
described in the related Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
This section describes the general terms of the Common Stock. A copy of our
Revised Articles of Incorporation has been filed as an exhibit to the
registration statement. The Common Stock and the rights of common shareholders
are subject to the applicable provisions of the Revised Business Corporation
Law of the State of Utah and the Revised Articles of Incorporation. The Company
is presently authorized to issue 500,000,000 shares of Common Stock, par value
$2.50 per share. At February 8, 1999, an aggregate of 247,566,077 shares of
Common Stock were outstanding.
Dividends
Subject to the rights of holders of any Preferred Stock which may be issued,
the holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of any legally available funds. The
Company may not pay dividends on Common Stock, other than dividends payable in
Common Stock or any other class or classes of stock junior in rank to the
Preferred Stock as to dividends or upon liquidation, unless all dividends
accrued on outstanding Preferred Stock have been paid or declared and set apart
for payment.
Voting Rights
Holders of Common Stock are entitled to one vote for each share held. Except
as provided in the related Prospectus Supplement, any series of Preferred Stock
will be entitled, with certain exceptions, to vote together with the holders of
Common Stock as one class. See "Description of Preferred Stock--Voting Rights."
In voting for the election of directors, holders of Common Stock shall not have
the right to cumulate their votes.
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Notwithstanding that shareholders shall not be entitled to cumulate votes in
the election of directors, no one of the directors may be removed if the votes
of a sufficient number of shares are cast against removal which, at an election
of the board of directors would have been sufficient to elect the director if
cumulative voting were applicable.
Liquidation Rights
Any Preferred Stock would be senior to the Common Stock as to distributions
upon liquidation, dissolution or winding up of the Company. After distribution
in full of the preferential amounts to be distributed to holders of Preferred
Stock, holders of Common Stock will be entitled to receive all remaining assets
of the Company available for distribution to stockholders in the event of
voluntary or involuntary liquidation.
Transactions With Ten Percent Stockholders
The Revised Articles of Incorporation provide for certain voting rights for
the holders of the Company's voting stock (including Common Stock) in the case
of certain transactions between the Company and a beneficial owner of more than
10% of the Company's voting stock. See "Description of Preferred Stock--
Transactions With Ten Percent Stockholders."
Miscellaneous
The Common Stock is not redeemable, has no preemptive or conversion rights
and is not liable for further assessments or calls. All shares of Common Stock
offered hereby will be fully paid and non-assessable.
Transfer Agent and Registrar
Harris Trust & Savings Bank is the transfer agent and registrar for the
Common Stock. The Common Stock is listed on the New York Stock Exchange.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities or Preferred Stock. Securities Warrants may be issued independently
or together with any Debt Securities or shares of Preferred Stock offered by
any Prospectus Supplement and may be attached to or separate from such Debt
Securities or shares of Preferred Stock. The Securities Warrants are to be
issued under Warrant Agreements to be entered into between the Company and
Citibank, N.A. or The Chase Manhattan Bank, as Warrant Agent, or such other
bank or trust company as is named in the Prospectus Supplement relating to the
particular issue of Securities Warrants (the "Warrant Agent"). The Warrant
Agent will act solely as an agent of the Company in connection with the
Securities Warrants and will not assume any obligation or relationship of
agency or trust for or with any holders of Securities Warrants or beneficial
owners of Securities Warrants. The following summaries of certain provisions of
the form of Warrant Agreement and Securities Warrants do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the applicable Warrant Agreement and the Securities
Warrants.
General
If Securities Warrants are offered, the Prospectus Supplement will describe
the terms of the Securities Warrants, including the following if applicable to
the particular offering:
. The offering price;
. The currency, currencies or currency units for which Securities Warrants
may be purchased;
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. The designation, aggregate principal amount, currency, currencies or
currency units and terms of the Debt Securities purchasable upon
exercise of the Warrants and the price at which such Debt Securities may
be purchased upon such exercise;
. The designation, number of shares and terms of the series of Preferred
Stock purchasable upon exercise of the Securities Warrants to purchase
Preferred Stock and the price at which such shares of Preferred Stock
may be purchased upon such exercise;
. The designation and terms of the Debt Securities or Preferred Stock with
which the Securities Warrants are issued and the number of Securities
Warrants issued with each such Debt Security or share of Preferred
Stock;
. The date on and after which the Securities Warrants and the related Debt
Securities or Preferred Stock will be separately transferable;
. The date on which the right to exercise the Securities Warrants shall
commence and the date (the "Expiration Date") on which such right shall
expire;
. Whether the Securities Warrants will be issued in registered or bearer
form;
. A discussion of certain Federal income tax, accounting and other special
considerations, procedures and limitations relating to the Securities
Warrants; and
. Any other terms of the Securities Warrants.
Securities Warrants may be exchanged for new Securities Warrants of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office of
the Warrant Agent or any other office indicated in the Prospectus Supplement.
Before the exercise of their Securities Warrants, holders of Securities
Warrants will not have any of the rights of holders of the Debt Securities or
shares of Preferred Stock purchasable upon such exercise, including the right
to receive payments of principal of, any premium on, or any interest on, the
Debt Securities purchasable upon such exercise or to enforce the covenants in
the Indenture or to receive payments of dividends, if any, on the Preferred
Stock purchasable upon such exercise or to exercise any applicable right to
vote.
Exercise of Securities Warrants
Each Securities Warrant will entitle the holder to purchase such principal
amount of Debt Securities or such number of shares of Preferred Stock at such
exercise price as shall in each case be set forth in, or calculable from, the
Prospectus Supplement relating to the Securities Warrant. Securities Warrants
may be exercised at such times as are set forth in the Prospectus Supplement
relating to such Securities Warrants. After the close of business on the
Expiration Date (or such later date to which such Expiration Date may be
extended by the Company), unexercised Securities Warrants will become void.
Subject to any restrictions and additional requirements that may be set forth
in the Prospectus Supplement relating thereto, Securities Warrants may be
exercised by delivery to the Warrant Agent of the certificate evidencing such
Securities Warrants properly completed and duly executed and of payment as
provided in the Prospectus Supplement of the amount required to purchase the
Debt Securities or shares of Preferred Stock purchasable upon such exercise.
The exercise price will be the price applicable on the date of payment in full,
as set forth in the Prospectus Supplement relating to the Securities Warrants.
Upon receipt of such payment and the certificate representing the Securities
Warrants to be exercised properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement, the Company will, as soon as practicable, issue and
deliver the Debt Securities or shares of Preferred Stock purchasable upon such
exercise. If fewer than all of the Securities Warrants represented by such
certificate are exercised, a new certificate will be issued for the remaining
amount of Securities Warrants.
19
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities offered by this Prospectus through
underwriters or dealers, through agents, directly to purchasers, or through a
combination of any such methods of sale. Any such underwriter, dealer or agent
may be deemed to be an underwriter within the meaning of the Securities Act.
The Prospectus Supplement relating to the Offered Securities will set forth
their offering terms, including the name or names of any underwriters, dealers
or agents, the purchase price of the Securities offered and the proceeds to the
Company from such sale, any underwriting discounts, commissions and other items
constituting compensation to underwriters, dealers or agents, any initial
public offering price, any discounts or concessions allowed or reallowed or
paid by underwriters or dealers to other dealers, and any securities exchanges
on which the offered Securities may be listed.
If underwriters or dealers are used in the sale, the offered Securities will
be acquired by the underwriters or dealers for their own account and may be
resold from time to time in one or more transactions, at a fixed price or
prices, which may be changed, or at market prices prevailing at the time of
sale, or at prices related to such prevailing market prices, or at negotiated
prices. The offered Securities may be offered to the public either through
underwriting syndicates represented by one or more managing underwriters or
directly by one or more of such firms. Unless otherwise set forth in the
Prospectus Supplement, the obligations of underwriters or dealers to purchase
the offered Securities will be subject to certain conditions precedent and the
underwriters or dealers will be obligated to purchase all the offered
Securities if any are purchased. Any initial public offering price and any
discounts or concessions allowed or reallowed or paid by underwriters or
dealers to other dealers may be changed from time to time.
Offered Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the offered Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis
for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in
the future. Such contracts will be subject to any conditions set forth in the
Prospectus Supplement and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts. The underwriters and
other persons soliciting such contracts will have no responsibility for the
validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
by the Company to payments they may be required to make in respect thereof. The
terms and conditions of such indemnification will be described in an applicable
Prospectus Supplement. Underwriters, dealers and agents may be customers of,
engage in transactions with, or perform services for the Company in the
ordinary course of business.
Each series of offered Securities other than Common Stock will be a new
issue of securities with no established trading market. Any underwriters to
whom offered Securities are sold by the Company for public offering and sale
may make a market in such offered Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
any offered Securities.
Any underwriter may engage in stabilizing and syndicate covering
transactions in accordance with Rule 104 under the Exchange Act. Rule 104
permits stabilizing bids to purchase the underlying security so long as the
stabilizing bids to do not exceed a specified maximum. The underwriters may
over-allot offered Securities,
20
<PAGE>
thereby creating a short position in the underwriters' account. Syndicate
covering transactions involve purchases of offered Securities in the open
market after the distribution has been completed to cover syndicate short
positions. Stabilizing and syndicate covering transactions may cause the price
of the offered Securities to be higher than it would otherwise be in the
absence of such transactions. These transactions, if commenced, may be
discontinued at any time.
LEGAL OPINIONS
The validity of the offered Securities will be passed upon for the Company
by Richard J. Ressler, Esquire, Assistant General Counsel of the Company, or
another senior corporate counsel designated by the Company, and for the
underwriters, dealers or agents, if any, by Cravath, Swaine & Moore, Worldwide
Plaza, 825 Eighth Avenue, New York, N.Y. 10019, unless otherwise specified in
the Prospectus Supplement. Mr. Ressler beneficially owns 14,744 shares of
Common Stock, including retention shares granted under the Company's 1993 Stock
Option and Retention Stock Plan, and holds options to purchase 96,856
additional shares of the Common Stock. Cravath, Swaine & Moore has provided
legal services from time to time to the Company and its affiliates.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries as
of December 31, 1998 and 1997 and for each of the years in the three-year
period ended December 31, 1998, incorporated in this Prospectus by reference
from Company's Annual Report on Form 10-K for the year ended December 31, 1998,
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
21
<PAGE>
[LOGO OF UNION PACIFIC CORPORATION APPEARS HERE]
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution*
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee................... $270,494
Trustee's Fees and Expenses........................................... 25,000
Printing Expenses..................................................... 60,000
Rating Agencies' Fees................................................. 100,000
Accountants's Fees and Expenses....................................... 50,000
Blue Sky Fees and Expenses............................................ 5,000
--------
Total............................................................... $510,494
========
</TABLE>
- --------
* All amounts are estimated except for the registration fee.
Item 15. Indemnification of Directors and Officers
The Company is a Utah corporation. Section 16-10a-901 et. seq. of the
Revised Business Corporation Act of Utah grants to a corporation the power to
indemnify a person made a party to a lawsuit or other proceeding because such
person is or was a director or officer. A corporation is further empowered to
purchase insurance on behalf of any person who is or was a director or officer
against any liability asserted against him or her and incurred by him or her in
such capacity or arising out of his or her status as such capacity. The
Company's By-Laws provide for mandatory indemnification of its directors,
officers and employees in certain circumstances. The Company maintains
insurance on behalf of directors and officers against liability asserted
against them arising out of their status as such.
The Company's Revised Articles of Incorporation, incorporated herein as
Exhibit 3.1 to this Registration Statement, eliminate in certain circumstances
the personal liability of directors of the Company for monetary damages for a
breach of their fiduciary duty as directors. This provision does not eliminate
the liability of a director for (i) the amount of a financial benefit received
by a director to which he is not entitled, (ii) an intentional infliction of
harm on the corporation or the shareholders, (iii) a violation of Section16-
10a-842 of the Revised Business Corporation Act of Utah (relating to the
liability of directors for unlawful distributions) or (iv) an intentional
violation of criminal law.
Reference is made to Section 6 of the form of Underwriting Agreement filed
as Exhibit 1 to the Company's Registration Statement on Form S-3 (File No. 333-
18345), dated December 20, 1996, for additional indemnification provisions.
Item 16. Exhibits
<TABLE>
<C> <S>
1. -- Form of Underwriting Agreement, incorporated by reference to Exhibit
1 to the Company's Registration Statement on Form S-3 (File No. 333-
18345), dated December 20, 1996.
3.1 -- Revised Articles of Incorporation of Union Pacific Corporation, as
amended through April 25, 1996, incorporated by reference to Exhibit
3 to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996.
*3.2 -- Form of Certificate of Amendment for Preferred Stock.
3.3 -- By-laws of Union Pacific Corporation, as amended effective as of
November 19, 1998, incorporated by reference to Exhibit 3.1 to the
Company's Current Report on Form 8-K dated November 25, 1998.
4.1 -- Indenture, dated as of December 20, 1996, between Union Pacific
Corporation and Citibank, N.A., Trustee, incorporated by reference
to Exhibit 4.1 to the Company's Registration Statement on Form S-3
(File No. 333-18345), dated December 20, 1996.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
4.2 -- Form of Indenture, dated as of April 1, 1999, between Union Pacific
Corporation and The Chase Manhattan Bank, Trustee.
*4.3 -- Form of Warrant Agreement.
4.4 -- Form of Debt Security, incorporated by reference to Exhibit 4.3 to
the Company's Registration Statement on Form S-3 (File No. 33-
59323), dated May 12, 1995.
5 -- Opinion and consent of Richard J. Ressler, Esquire, counsel for the
Company.
12 -- Computation of Ratio of Earnings to Fixed Charges, incorporated by
reference to Exhibit 12 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998.
23 -- Consent of Deloitte & Touche LLP.
24 -- Powers of Attorney.
25.1 -- Statement on Form T-1 of the eligibility of Citibank, N.A. under the
Indenture, incorporated by reference to Exhibit 25 to the Company's
Registration Statement of Form S-3 (File No. 333-54009), dated May
29, 1998.
25.2 -- Statement on Form T-1 of the eligibility of The Chase Manhattan Bank
under the Indenture.
</TABLE>
- --------
* To be filed by amendment or incorporated herein by reference.
Item 17. Undertakings
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, 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 this 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 the 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 SEC pursuant to Rule 424(b) promulgated under the Securities
Act of 1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% 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 the undertakings set forth in clauses (i) and (ii)
above do not apply if the information required to be included in a post-
effective amendment by those clauses is contained in periodic reports filed
by the Company pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this 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; and
II-2
<PAGE>
(4) That, for the purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this 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.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described under Item 15 above or otherwise,
the Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company in the successful defense of any action, suit or proceeding) is
asserted against the Company by such director, officer or controlling person in
connection with the securities being registered, the Company 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 Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Union Pacific
Corporation 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 Dallas, State of Texas, on this 9th day of
April, 1999.
Union Pacific Corporation
/s/ Gary M. Stuart
By: _________________________________
Name: Gary M. Stuart
Title: Executive Vice President--
Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed below on this 9th day of
April, 1999, by the following person in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Richard K. Davidson Chairman of the Board, President, Chief
___________________________________________ Executive Officer and Director (Principal
(Richard K. Davidson) Executive Officer)
/s/ Gary M. Stuart Executive Vice President--Finance
___________________________________________ (Principal Financial Officer)
(Gary M. Stuart)
/s/ James R. Young Controller (Principal Accounting Officer)
___________________________________________
(James R. Young)
* Director
___________________________________________
(Philip F. Anschutz)
* Director
___________________________________________
(Robert P. Bauman)
* Director
___________________________________________
(Richard B. Cheney)
* Director
___________________________________________
(E. Virgil Conway)
* Director
___________________________________________
(Thomas J. Donohue)
* Director
___________________________________________
(Spencer F. Eccles)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
* Director
___________________________________________
(Ivor J. Evans)
* Director
___________________________________________
(Elbridge T. Gerry, Jr.)
* Director
___________________________________________
(William H. Gray, III)
* Director
___________________________________________
(Judith Richards Hope)
* Director
___________________________________________
(Richard J. Mahoney)
* Director
___________________________________________
(John R. Meyer)
* Director
___________________________________________
(Thomas A. Reynolds, Jr.)
* Director
___________________________________________
</TABLE> (Richard D. Simmons)
*By: /s/ Thomas E. Whitaker
_______________________________________
(Thomas E. Whitaker
As Attorney-in-Fact)
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Exhibit Pages
------- ---------------------- ------------
<C> <S> <C>
1. -- Form of Underwriting Agreement, incorporated by
reference to Exhibit 1 to the Company's Registration
Statement on Form S-3 (File No. 333-18345), dated
December 20, 1996.
3.1 -- Revised Articles of Incorporation of Union Pacific
Corporation, as amended through April 25, 1996,
incorporated by reference to Exhibit 3 to the
Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996.
*3.2 -- Form of Certificate of Amendment for Preferred
Stock.
3.3 -- By-laws of Union Pacific Corporation, as amended
effective as of November 19, 1998, incorporated by
reference to Exhibit 3.1 to the Company's Current
Report on Form 8-K dated November 25, 1998.
4.1 -- Indenture, dated as of December 20, 1996, between
Union Pacific Corporation and Citibank, N.A.,
Trustee, incorporated by reference to Exhibit 4.1 to
the Company's Registration Statement on Form S-3
(File No. 333-18345), dated December 20, 1996.
4.2 -- Form of Indenture, dated as of April 1, 1999,
between Union Pacific Corporation and The Chase
Manhattan Bank, Trustee.
*4.3 -- Form of Warrant Agreement.
4.4 -- Form of Debt Security, incorporated by reference to
Exhibit 4.3 to the Company's Registration Statement
on Form S-3 (File No. 33-59323), dated May 12, 1995.
5 -- Opinion and consent of Richard J. Ressler, Esquire,
counsel for the Company.
12 -- Computation of Ratio of Earnings to Fixed Charges,
incorporated by reference to Exhibit 12 to the
Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1998
23 -- Consent of Deloitte & Touche LLP.
24 -- Powers of Attorney.
25.1 -- Statement on Form T-1 of the eligibility of
Citibank, N.A. under the Indenture, incorporated by
reference to Exhibit 25 to the Company's
Registration Statement of Form S-3 (File No. 333-
54009), dated May 29, 1998
25.2 -- Statement on Form T-1 of the eligibility of The
Chase Manhattan Bank under the Indenture.
</TABLE>
- --------
* To be filed by amendment or incorporated herein by reference.
<PAGE>
EXHIBIT 4.2
- --------------------------------------------------------------------------------
UNION PACIFIC CORPORATION
and
THE CHASE MANHATTAN BANK
Trustee
INDENTURE
Dated as of April 1, 1999
Providing for Issuance of Securities in Series
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
Recitals of the Company..................................................... 1
Agreements of the Parties................................................... 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.................................................... 1
Act.......................................................... 2
Affiliate.................................................... 2
Authenticating Agent......................................... 2
Board of Directors........................................... 2
Board Resolution............................................. 2
Business Day................................................. 2
Commission................................................... 2
Company...................................................... 2
Company Request, Company Order
and Company Consent......................................... 3
Corporate Trust Office....................................... 3
Debt......................................................... 3
Defaulted Interest........................................... 3
Depositary................................................... 3
Domestic Subsidiary.......................................... 3
Event of Default............................................. 3
Global Security.............................................. 3
Holder....................................................... 3
Indenture, this Indenture.................................... 3
Independent.................................................. 4
Interest..................................................... 4
Interest Payment Date........................................ 4
Maturity..................................................... 4
Mortgage..................................................... 4
Officers' Certificate........................................ 4
Opinion of Counsel........................................... 4
Original Issue Discount Security............................. 4
i
<PAGE>
PAGE
----
Outstanding.................................................. 5
Paying Agent................................................. 5
Person....................................................... 5
Place of Payment............................................. 5
Predecessor Securities....................................... 6
Redemption Date.............................................. 6
Redemption Price............................................. 6
Regular Record Date.......................................... 6
Repayment Date............................................... 6
Repayment Price.............................................. 6
Responsible Officer.......................................... 6
Security or Securities....................................... 6
Security Register............................................ 6
Security Registrar........................................... 6
Securityholder............................................... 6
Special Record Date.......................................... 6
Stated Maturity.............................................. 7
Subsidiary................................................... 7
Trust Indenture Act or TIA................................... 7
Trustee...................................................... 7
Vice President............................................... 7
Voting Stock................................................. 7
Section 102. Compliance Certificates and Opinions........................... 7
Section 103. Form of Documents Delivered to Trustee......................... 8
Section 104. Acts of Securityholders........................................ 8
Section 105. Notices, etc., to Trustee and Company.......................... 9
Section 106. Notices to Securityholders; Waiver............................. 10
Section 107. Conflict with Trust Indenture Act.............................. 10
Section 108. Effect of Headings and Table of Contents....................... 10
Section 109. Successors and Assigns......................................... 10
Section 110. Separability Clause............................................ 10
Section 111. Benefits of Indenture.......................................... 10
Section 112. Governing Law.................................................. 11
Section 113. Counterparts................................................... 11
Section 114. Judgment Currency.............................................. 11
ii
<PAGE>
PAGE
----
ARTICLE TWO
Security Forms
Section 201. Forms Generally................................................ 11
Section 202. Forms of Securities............................................ 12
Section 203. Form of Trustee's Certificate of Authentication................ 12
Section 204. Securities Issuable in the Form of a Global Security........... 12
ARTICLE THREE
The Securities
Section 301. General Title; General Limitations; Issuable in
Series; Terms of Particular Series............................ 14
Section 302. Denominations.................................................. 16
Section 303. Execution, Authentication and Delivery and Dating.............. 16
Section 304. Temporary Securities........................................... 18
Section 305. Registration, Transfer and Exchange............................ 18
Section 306. Mutilated, Destroyed, Lost and Stolen Securities............... 20
Section 307. Payment of Interest; Interest Rights Preserved................. 20
Section 308. Persons Deemed Owners.......................................... 21
Section 309. Cancellation................................................... 21
Section 310. Computation of Interest........................................ 22
Section 311. Medium-Term Securities......................................... 22
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture........................ 22
Section 402. Application of Trust Money..................................... 23
Section 403. Satisfaction, Discharge and Defeasance of Securities
of any Series................................................. 24
iii
<PAGE>
PAGE
----
ARTICLE FIVE
Remedies
Section 501. Events of Default.............................................. 26
Section 502. Acceleration of Maturity; Rescission and Annulment............. 27
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.................................................... 28
Section 504. Trustee May File Proofs of Claim............................... 29
Section 505. Trustee May Enforce Claims Without Possession of
Securities.................................................... 30
Section 506. Application of Money Collected................................. 30
Section 507. Limitation on Suits............................................ 30
Section 508. Unconditional Right of Securityholders to Receive Principal,
Premium and Interest.......................................... 31
Section 509. Restoration of Rights and Remedies............................. 31
Section 510. Rights and Remedies Cumulative................................. 31
Section 511. Delay or Omission not Waiver................................... 31
Section 512. Control by Securityholders..................................... 31
Section 513. Waiver of Past Defaults........................................ 32
Section 514. Undertaking for Costs.......................................... 32
Section 515. Waiver of Stay or Extension Laws............................... 32
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities............................ 33
Section 602. Notice of Defaults............................................. 34
Section 603. Certain Rights of Trustee...................................... 34
Section 604. Not Responsible for Recitals or Issuance of Securities......... 35
Section 605. May Hold Securities............................................ 35
Section 606. Money Held in Trust............................................ 35
Section 607. Compensation and Reimbursement................................. 35
Section 608. Disqualification; Conflicting Interests........................ 36
Section 609. Corporate Trustee Required; Eligibility........................ 36
Section 610. Resignation and Removal; Appointment of Successor.............. 37
iv
<PAGE>
PAGE
----
Section 611. Acceptance of Appointment by Successor......................... 38
Section 612. Merger, Conversion, Consolidation or Succession
to Business................................................... 39
Section 613. Preferential Collection of Claims Against Company.............. 39
Section 614. Appointment of Authenticating Agent............................ 39
ARTICLE SEVEN
Securityholders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses
of Securityholders............................................ 41
Section 702. Preservation of Information; Communications to
Securityholders............................................... 41
Section 703. Reports by Trustee............................................. 42
Section 704. Reports by Company............................................. 42
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only on Certain Terms........... 43
Section 802. Successor Corporation Substituted.............................. 43
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Securityholders..... 44
Section 902. Supplemental Indentures with Consent of Securityholders........ 45
Section 903. Execution of Supplemental Indentures........................... 46
Section 904. Effect of Supplemental Indentures.............................. 46
Section 905. Conformity with Trust Indenture Act............................ 46
v
<PAGE>
PAGE
----
Section 906. Reference in Securities to Supplemental Indentures............ 46
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.................... 47
Section 1002. Maintenance of Office or Agency............................... 47
Section 1003. Money for Security Payments to Be Held in Trust............... 47
Section 1004. Statement as to Compliance.................................... 48
Section 1005. Corporate Existence........................................... 49
Section 1006. Limitation on Liens........................................... 49
Section 1007. Waiver of Certain Covenants................................... 49
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article...................................... 50
Section 1102. Election to Redeem; Notice to Trustee......................... 50
Section 1103. Selection by Trustee of Securities to Be Redeemed............. 50
Section 1104. Notice of Redemption.......................................... 51
Section 1105. Deposit of Redemption Price................................... 51
Section 1106. Securities Payable on Redemption Date......................... 51
Section 1107. Securities Redeemed in Part................................... 52
Section 1108. Provisions with Respect to any Sinking Funds.................. 52
vi
<PAGE>
THIS INDENTURE between UNION PACIFIC CORPORATION, a Utah corporation
(hereinafter called the "Company") having its principal office at 1717 Main
Street, Suite 5900, Dallas, Texas 75201-4605, and The Chase Manhattan Bank, a
New York corporation, as trustee (hereinafter called the "Trustee"), is made and
entered into as of this 1st day of April, 1999.
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its debentures, notes, bonds or other
evidences of indebtedness, to be issued in one or more fully registered series.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this Indenture and of
any indenture supplemental hereto, 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 or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation;
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(4) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this instrument as originally executed. 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; and
(5) "including" and words of similar import shall be deemed to be
followed by "without limitation".
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Security holder, has the meaning
specified in Section 104.
"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.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 614.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday or
other day on which banking institutions and trust companies in New York or the
pertinent Place or Places of Payment are authorized or required by law or
executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, 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 on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
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"Company Request", "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
450 West 33rd Street, New York, New York 10001, Attention: Corporate Trust
Department, except that with respect to the presentation of Securities for
payment or for registration of transfer and exchange, such term shall mean the
office or the agency of the Trustee in said city at which at any particular time
its corporate agency business shall be conducted, which office at the date
hereof is located at 450 West 33rd Street, New York, New York 10001.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 204 or 301, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing agency under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation.
"Domestic Subsidiary" means a Subsidiary which is incorporated or
conducting its principal operations within the United States of America or any
State thereof.
"Event of Default" has the meaning specified in Article Five.
"Global Security" means with respect to any series of Securities
issued hereunder, a Security which is executed by the Company and authenticated
and delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest.
"Holder", when used with respect to any Security, means a
Securityholder.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
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"Independent", when used with respect to any specified Person, means
such a Person who (1) is in fact independent, (2) does not have any direct
financial interest or any material indirect financial interest in the Company or
in any other obligor upon the Securities or in any Affiliate of the Company or
of such other obligor, and (3) is not connected with the Company or such other
obligor or any Affiliate of the Company or of such other obligor, as an officer,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions. Whenever it is herein provided that any Independent Person's
opinion or certificate shall be furnished to the Trustee, such Person shall be
appointed by a Company Order and approved by the Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
hereof.
"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 series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Maturity", when used with respect to any Securities, means the date
on which the principal of any such Security becomes due and payable as therein
or herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee. Wherever this
Indenture requires that an Officers' Certificate be signed also by an engineer
or an accountant or other expert, such engineer, accountant or other expert
(except as otherwise expressly provided in this Indenture) may be in the employ
of the Company, which engineer, accountant or expert shall be acceptable to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of or
of counsel to the Company who shall be acceptable to the Trustee, whose
acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means (i) 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, and (ii) any
other Security deemed an Original Issue Discount Security for United States
Federal income tax purposes.
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"Outstanding", when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, or which shall have been paid pursuant to the terms of Section
306 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a
person in whose hands such Security is a legal, valid and binding
obligation of the Company).
In determining whether the Holders of the requisite principal amount of
such Securities Outstanding have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of any
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of the taking of such action upon a declaration of acceleration of the Maturity
thereof and (ii) 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. In determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer assigned to the corporate trust department of the Trustee
knows to be owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor 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 to act as owner 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 such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means with respect to any series of Securities
issued hereunder the city or political subdivision so designated with respect to
the series of Securities in question in accordance with the provisions of
Section 301.
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"Predecessor Securities" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"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 specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the Regular
Record Date.
"Repayment Date", when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to be
repaid, means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or vice-
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any senior trust
officer or trust officer, the controller and any assistant controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers 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.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, of any series authenticated and delivered from time to time under this
Indenture.
"Security Register" shall have the meaning specified in Section 305.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 305.
"Securityholder" means a Person in whose name a Security is registered
in the Security Register.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 307) means a date fixed by the Trustee pursuant to Section
307.
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"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" of any specified corporation means any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by the specified corporation or by one or more of its
Subsidiaries, or both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this instrument was executed except as provided in Section 905.
"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
and include each Person who is then a Trustee hereunder. 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.
"Vice President" when used with respect to the Company or the Trustee
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president", including, without
limitation, an assistant vice president.
"Voting Stock", as applied to the stock of any corporation, means
stock of any class or classes (however designated) having by the terms thereof
ordinary voting power to elect a majority of the members of the board of
directors (or other governing body) of such corporation other than stock having
such power only by reason of the happening of a contingency.
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the written
statement required by Section 1004) 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;
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(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 103. Form of Documents Delivered to Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to the other matters, and any such Person may certify or give an opinion as
to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Securityholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of any
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
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. If any Securities are denominated in coin or currency other than that
of the United States, then for the purposes of determining whether the Holders
of the requisite principal amount of Securities have taken any action as herein
described, the principal amount of such Securities shall be deemed to be that
amount of United States dollars that could be obtained for such principal amount
on the basis of the spot rate of exchange into United States dollars for the
currency in which such Securities are denominated (as evidenced to the Trustee
by an Officers' Certificate) as of the date the taking of such action by the
Holders of such requisite principal amount is evidenced to the Trustee as
provided in the immediately preceding sentence. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be
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sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any 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 an officer of a corporation or a member of a partnership,
on behalf of such corporation or partnership, 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.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other action, the
Company may, at its option, by Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other
action may be given before or after the record date, but only the Holders of
record at the close of business on the record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite proportion of
Securities Outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action, and
for that purpose the Securities Outstanding shall be computed as of the record
date; provided that no such authorization, agreement or consent by the Holders
on the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind the Holder of
every Security issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done 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.
Section 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Securityholders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Securityholder 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, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section
501(4) or, in the case of a request for repayment, as specified in the
Security carrying the right to repayment) if in writing and
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mailed, first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notices to Securityholders; Waiver. Where this
Indenture or any Security provides for notice to Securityholders of any event,
such notice shall be sufficiently given (unless otherwise herein or in such
Security expressly provided) if in writing and mailed, first-class postage
prepaid, to each Securityholder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Securityholders is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture or any Security 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 Securityholders 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 as a
result of a strike, work stoppage or otherwise, it shall be impractical to mail
notice of any event to any Securityholder when such notice is required to be
given pursuant to any provision of this Indenture, then any method of
notification as shall be satisfactory to the Trustee and the Company shall be
deemed to be a sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required or deemed provision shall control.
Section 108. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture or in
any Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, any Authenticating Agent or
Paying Agent, the Security Registrar and the Holders of Securities (or such of
them as may be affected thereby), any benefit or any legal or equitable right,
remedy or claim under this Indenture.
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Section 112. Governing Law. This Indenture shall be construed in
accordance with and governed by the laws of the State of New York.
Section 113. Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 114. 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 premium or interest, if any, 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 New York Banking Day (as defined below) preceding that
on which final unappealable judgment is given 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. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in the City of New York or a day on which banking institutions in
the City of New York are authorized or required by law or executive order to
close.
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities shall have 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 applicable laws or regulations or with the
rules of any securities exchange, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods 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
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of such Securities, subject, with respect to the Securities of any series, to
the rules of any securities exchange on which such Securities are listed.
Section 202. Forms of Securities. Each Security shall be in one of
the forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the
delivery of a Security to the Trustee for authentication in any form approved by
or pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pursuant to which such form of Security has been
approved, which has been approved thereby or, if a Board Resolution authorizes a
specific officer or officers to approve a form of Security, a certificate of
such officer or officers approving the form of Security attached thereto. 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.
Section 203. Form of Trustee's Certificate of Authentication. The
form of Trustee's Certificate of Authentication for any Security issued pursuant
to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------
Authorized Officer
Section 204. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sections 202 and 301 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee or its agent shall, in accordance with Section 303 and the Company
Request delivered to the Trustee or its agent thereunder, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
a Company Request, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee, (iii) shall be delivered by
the Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
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Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or of
Section 305, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 305,
only to a nominee of the Depositary for such Global Security, or to the
Depositary, or a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time the Depositary for the Securities for such
series ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security 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 or its agent, upon
receipt of a Company Request for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion
determine that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Request for the
authentication and delivery of individual Securities of such series in exchange
in whole or in part for such Global Security, will authenticate and deliver
individual Securities of such series of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of such Global
Security or Securities representing such series or portion thereof in exchange
for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 202 and 301
with respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Securities of such series of like
tenor and terms in definitive form on such terms as are acceptable to the
Company and such Depositary. Thereupon the Company shall execute, and the
Trustee or its agent shall authenticate and deliver, without service charge, (1)
to each Person specified by such Depositary a new Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Securities
delivered to the Holders thereof.
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(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Securities in definitive registered form in
authorized denominations. Upon the exchange of the entire principal amount of a
Global Security for individual Securities, such Global Security shall be
cancelled by the Trustee or its agent. Except as provided in the preceding
paragraph, Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee or the
Security Registrar. The Trustee or the Security Registrar shall deliver such
Securities to the Persons in whose names such Securities are so registered.
ARTICLE THREE
The Securities
Section 301. General Title; General Limitations; Issuable in Series;
Terms of Particular Series. The aggregate principal amount of Securities which
may be authenticated and delivered and Outstanding under this Indenture is not
limited.
The Securities may be issued in one or more series up to an aggregate
principal amount of Securities as from time to time may be authorized by the
Board of Directors. All Securities of each series under this Indenture shall in
all respects be equally and ratably entitled to the benefits hereof with respect
to such series without preference, priority or distinction on account of the
actual time of the authentication and delivery or Stated Maturity of the
Securities of such series.
Each series of Securities shall be created either by or pursuant to a
Board Resolution or by or pursuant to an indenture supplemental hereto. The
Securities of each such series may bear such date or dates, be payable at such
place or places, have such Stated Maturity or Maturities, be issuable at such
premium over or discount from their face value, bear interest at such rate or
rates (which may be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on such Regular Record Dates, or may bear no
interest, and may be redeemable or repayable at such Redemption Price or Prices
or Repayment Price or Prices, as the case may be, whether at the option of the
Holder or otherwise, and upon such terms, all as shall be provided for in or
pursuant to the Board Resolution or in or pursuant to the supplemental indenture
creating that series. There may also be established in or pursuant to a Board
Resolution or in or pursuant to a supplemental indenture prior to the issuance
of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that series, at
the option of the Holders thereof, for or into new Securities of a
different series or other securities or other property, including shares of
capital stock of the Company or any subsidiary of the Company or securities
directly or indirectly convertible into or exchangeable for any such
shares;
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(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies (including European Currency Units) in
which the Securities of such series shall be denominated and in which
payments of principal of, and any premium and interest on, such Securities
shall or may be payable;
(4) if the principal of (and premium, if any) or interest, if any, on
the Securities of such series are to be payable, at the election of the
Company or a holder thereof, in a currency or currencies or units based on
or related to currencies (including European Currency Units) other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(5) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of such series may be determined
with reference to an index based on (i) a currency or currencies or units
based on or related to currencies (including European Currency Units) other
than that in which the Securities are stated to be payable, (ii) changes in
the price of one or more other securities or groups or indexes of
securities or (iii) changes in the prices of one or more commodities or
groups or indexes of commodities, or any combination of the foregoing, the
manner in which such amounts shall be determined;
(6) if the aggregate principal amount of the Securities of that
series is to be limited, such limitations;
(7) the exchange of Securities of that series, at the option of the
Holders thereof, for other Securities of the same series of the same
aggregate principal amount of a different authorized kind or different
authorized denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent in one
or more places other than the location of the office of the Trustee with
power to act on behalf of the Trustee and subject to its direction in the
authentication and delivery of the Securities of any one or more series in
connection with such transactions as shall be specified in the provisions
of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series;
(9) the portion of the principal amount of Securities of the series,
if other than the total principal amount thereof, which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of such
series, if not set forth herein and any additions, deletions or other
changes to the Events of Default set forth herein that shall be applicable
to the Securities of such series (including a provision making any Event of
Default set forth herein inapplicable to the Securities of that series);
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(11) any covenant solely for the benefit of the Securities of such
series and any additions, deletions or other changes to the provisions of
Article Ten or any definitions relating to such Article that shall be
applicable to the Securities of such series (including a provision making
any Section of such Article inapplicable to the Securities of such series);
(12) the applicability of Section 403 of this Indenture to the
Securities of such series;
(13) if the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Global Securities, the terms and
conditions, if any, upon which such Global Security or Global Securities
may be exchanged in whole or in part for other individual Securities; and
the Depositary for such Global Security or Global Securities (if other than
the Depositary specified in Section 101 hereof);
(14) the subordination of the Securities of such series to any other
indebtedness of the Company, including without limitation, the Securities
of any other series; and
(15) any other terms of the series, which shall not be inconsistent
with the provisions of this Indenture,
all upon such terms as may be determined in or pursuant to a Board Resolution or
in or pursuant to a supplemental indenture with respect to such series. All
Securities of the same series shall be substantially identical in tenor and
effect, except as to denomination.
The form of the Securities of each series shall be established
pursuant to the provisions of this Indenture in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating such series.
The Securities of each series shall be distinguished from the Securities of each
other series in such manner, reasonably satisfactory to the Trustee, as the
Board of Directors may determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series may only be issuable in registered form,
without coupons.
Any terms or provisions in respect of the Securities of any series
issued under this Indenture may be determined pursuant to this Section by
providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
Section 302. Denominations. The Securities of each series shall be
issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any such
provisions with respect to the Securities of any series, the Securities of that
series shall be issuable only in fully registered form in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication and Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, one of its Vice Presidents or its Treasurer under its
corporate seal reproduced thereon and attested by its
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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 executed by the Company to
the Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and deliver such Securities as in this Indenture provided and not
otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and the
Board Resolution and any certificate relating to the issuance of the series of
Securities required to be furnished pursuant to Section 202, an Opinion of
Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority hereunder
for the Trustee to authenticate and deliver such Securities;
(2) the form and terms (or in connection with the issuance of medium-
term Securities under Section 311, the manner of determining the terms) of
such Securities have been established in conformity with the provisions of
this Indenture;
(3) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with, the
Company has the corporate power to issue such Securities and such
Securities have been duly authorized and delivered by the Company and,
assuming due authentication and delivery by the Trustee, constitute legal,
valid and binding obligations of the Company enforceable in accordance with
their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws and legal
principles affecting creditors' rights generally from time to time in
effect and to general equitable principles, whether applied in an action at
law or in equity) and entitled to the benefits of this Indenture, equally
and ratably with all other Securities, if any, of such series Outstanding;
and
(4) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating, in addition to the
requirements set forth in Article 9, that all laws and requirements with respect
to the form and execution by the Company of the supplemental indenture with
respect to that series of Securities have been complied with, the Company has
corporate power to execute and deliver any such supplemental indenture and has
taken all necessary corporate action for those purposes and any such
supplemental indenture has been executed and
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delivered and constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws and legal principles affecting creditors' rights generally from time
to time in effect and to general equitable principles, whether applied in an
action at law or in equity).
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their 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 of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and, upon receipt
of the documents required by Section 303, together with a 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.
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, 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, without charge to the Holder; and
upon surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations and of like tenor and terms. Until so exchanged the
temporary Securities of such series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange. The Company shall
keep or cause to be kept a register (herein sometimes 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, or of
Securities of a particular series, and for transfers of Securities or of
Securities of such series. Any such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such register or
registers shall be available for inspection by the Trustee at the office or
agency to be maintained by the Company as provided in Section 1002.
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Subject to Section 204, upon surrender for transfer of any Security of
any series at the office or agency of the Company in a Place of Payment, 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
such series of any authorized denominations, of a like aggregate principal
amount and Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder, Securities of any
series may be exchanged for other Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms, 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 Securityholder making the exchange is entitled to receive.
All Securities issued upon any 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 transfer or exchange.
Every Security presented or surrendered for transfer or 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.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made on any Securityholder for any
transfer or exchange of Securities, but the Company may (unless otherwise
provided in such Security) require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any transfer
or exchange of Securities, other than exchanges pursuant to Section 304 or 906
not involving any transfer.
The Company shall not be required (i) to issue, transfer or exchange
any Security of any series during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities of
such series selected for redemption under Section 1103 and ending at the close
of business on the date of such mailing, or (ii) to transfer or exchange any
Security so selected for redemption in whole or in part, except for the portion
of such Security not so selected for redemption.
None of the Company, the Trustee, any agent of the Trustee, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
The Company initially appoints the Trustee to act as Security
Registrar for the Securities on its behalf. The Company may at any time and
from time to time authorize any Person to act as Security Registrar in place of
the Trustee with respect to any series of Securities issued under this
Indenture.
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Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If
(i) any mutilated Security is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Security, and (ii) there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security, a new Security
of like tenor, series, Stated Maturity and principal amount, 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.
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 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 the same 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 307. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided with respect to such Security pursuant to Section 301,
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 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 registered
Holder on the relevant Regular Record Date by virtue of his having been such
Holder; and, except as hereinafter provided, such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in Clause (1) or
Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names any such Securities (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
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the Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each such Security 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 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of each such Security at his
address as it appears in the Security Register, not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are
registered 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 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.
If any installment of interest the Stated Maturity of which is on or
prior to the Redemption Date for any Security called for redemption pursuant to
Article Eleven is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon 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 308. Persons Deemed Owners. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name any
Security is registered in the Security Register as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 307) 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 309. Cancellation. All Securities surrendered for payment,
redemption, transfer, conversion or exchange or credit against a sinking fund
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and, if not already cancelled, shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
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previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Security 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. The Trustee shall dispose of
all cancelled Securities in accordance with its customary procedures and shall
deliver a certificate of such disposition to the Company.
Section 310. Computation of Interest. Unless otherwise provided as
contemplated in Section 301, interest on the Securities shall be calculated on
the basis of a 360-day year of twelve 30-day months.
Section 311. Medium-term Securities. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary for the Company to deliver to the Trustee
an Officers' Certificate, Board Resolution, supplemental indenture, Opinion of
Counsel or Company Request otherwise required pursuant to Sections 202, 301 and
303 at or prior to the time of authentication of each Security of such series if
such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to be
issued; provided that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate delivered pursuant to Section
102 shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time upon the telephonic or written order of persons
designated in such Officers' Certificate, Board Resolution or supplemental
indenture (any such telephonic instructions to be confirmed promptly in writing
by such persons) and that such persons are authorized to determine, consistent
with such Officers' Certificate, supplemental indenture or Board Resolution,
such terms and conditions of said Securities as are specified in such Officers'
Certificate, supplemental indenture or Board Resolution.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to any series of Securities
(except as to any surviving rights of conversion, transfer or exchange of
Securities of such series expressly provided for herein or in the form of
Security for such series), and the Trustee, on demand of and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
(1) either
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(A) all Securities of that series theretofore authenticated and
delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee cancelled or for cancellation; or
(B) all such Securities of that series not theretofore delivered
to the Trustee cancelled or 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
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee cancelled or for
cancellation, for principal (and premium, if any) 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 with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
with respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee with respect to that series under Section 607 shall survive and the
obligations of the Trustee under Sections 402 and 1003 shall survive.
Section 402. Application of Trust Money. All money and obligations
deposited with the Trustee pursuant to Section 401 or Section 403 and all money
received by the Trustee in respect of such obligations shall be held in trust
and applied by it, in accordance with the provisions of the series of Securities
in respect of which it was deposited and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and
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interest for whose payment such money and obligations have been deposited with
or received by the Trustee; but such money and obligations need not be
segregated from other funds except to the extent required by law.
Section 403. Satisfaction, Discharge and Defeasance of Securities of
any Series. If this Section 403 is specified, as contemplated by Section 301,
to be applicable to Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Securities of any
such series at the time outstanding, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction, discharge
and defeasance of such indebtedness, when
(1) either
(A) with respect to all Securities of such series at the time
outstanding,
(i) the Company has deposited or caused to be deposited
with the Trustee as trust funds in trust for such purpose an
amount sufficient, together with any obligations deposited
pursuant to clause (ii) below, to pay and discharge the entire
indebtedness on all such Securities for principal (and premium,
if any) and interest, on the days on which such principal (and
premium, if any) or interest, as the case may be, is due and
payable in accordance with the terms of this Indenture and such
Securities, to the date of maturity or date of redemption thereof
as contemplated by the penultimate paragraph of this Section 403,
as the case may be; or
(ii) the Company has deposited or caused to be deposited
with the Trustee as obligations in trust for such purpose such
amount of direct obligations of, or obligations the principal of
and interest on which are fully guaranteed by, the government
which issued the currency in which such Securities are
denominated (other than such obligations as are redeemable at the
option of the issuer thereof) as will, together with the income
to accrue thereon without consideration of any reinvestment
thereof, be sufficient, in the written opinion of a firm of
nationally recognized independent public accountants (which may
be the Company's auditors) delivered to the Trustee, together
with any funds deposited pursuant to clause (i) above, to pay and
discharge the entire indebtedness on all such Securities for
principal (and premium, if any) and interest, on the days on
which such principal (and premium, if any) or interest, as the
case may be, is due and payable in accordance with the terms of
this Indenture and such Securities, to the date of maturity or
date of redemption thereof as contemplated by the penultimate
paragraph of this Section 403, as the case may be; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Securities of such series;
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(2) the Company has paid or caused to be paid all other sums payable
with respect to the Securities of such series at the time Outstanding;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which, after notice or lapse of time
or both, would become an Event of Default shall have occurred and be
continuing on the date of such deposit; and
(5) 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, discharge and defeasance
of the entire indebtedness on all Securities of any such series at the time
Outstanding have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable. If any Securities of such series at the time outstanding
are to be redeemed prior to their Stated Maturity, whether pursuant to any
optional redemption provisions or in accordance with any mandatory sinking fund
requirement, the Company shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Securities of any series at the time Outstanding, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture (except as to any surviving rights
of conversion, transfer or exchange of Securities of such series expressly
provided for herein or in the form of Security for such series), shall no longer
be binding upon, or applicable to, the Company, provided that the Company shall
not be discharged from any payment obligations in respect of Securities of such
series which are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law.
Notwithstanding the satisfaction of the conditions set forth in this
Section 403 with respect to all Securities of any series at the time
Outstanding, the obligations of the Company to the Trustee with respect to that
series under Section 607 and the obligations of the Trustee with respect to that
series under Section 402 and 1003 shall survive.
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ARTICLE FIVE
Remedies
Section 501. Events of Default. "Event of Default", wherever used
herein, means with respect to any series of Securities 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), unless such event is either inapplicable
to a particular series or it is specifically deleted or modified in the
supplemental indenture creating such series of Securities or in the form of
Security for such series:
(1) 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
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture in respect of the Securities of such
series (other than a covenant or warranty in respect of the Securities of
such series a default in the performance of which or the breach of which is
elsewhere in this Section specifically dealt with), all of such covenants
and warranties in the Indenture which are not expressly stated to be for
the benefit of a particular series of Securities being deemed in respect of
the Securities of all series for this purpose, and continuance of such
default or breach for a period of 90 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 such 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) the entry of an order for relief against the Company under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or a
decree or order by a court having jurisdiction in the premises adjudging
the Company a bankrupt or insolvent under any other applicable Federal or
State law, or the entry of a decree or order approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under the Federal Bankruptcy Code 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, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking
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reorganization or relief under the Federal Bankruptcy Code or any other
applicable Federal or State law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
Section 502. Acceleration of Maturity; Rescission and Annulment. If
an Event of Default described in paragraph (1), (2), (3), (4) or (7) (if the
Event of Default under paragraph (4) or (7) is with respect to less than all
series of Securities then Outstanding) of Section 501 occurs and is continuing
with respect to any series, then and in each and every such case, unless the
principal of all the Securities of such series 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 such series then Outstanding hereunder
(each such series acting as a separate class), by notice in writing to the
Company (and to the Trustee if given by Holders), may declare the principal
amount (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Securities of such series then Outstanding and
all accrued interest thereon to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Securities of such series contained to the
contrary notwithstanding. If an Event of Default described in paragraph (4) or
(7) (if the Event of Default under paragraph (4) or (7) is with respect to all
series of Securities then Outstanding), (5) or (6) of Section 501 occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Company (and to the Trustee if given by Holders), may declare the
principal amount (or, if any Securities are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms thereof)
of all the Securities then Outstanding and all accrued interest thereon to be
due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything in this Indenture or in the
Securities contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made
with respect to the Securities of any series and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on the Securities of
such series,
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(B) the principal of (and premium, if any, on) any Securities of
such series which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series, to the extent
that payment of such interest is lawful,
(C) interest upon overdue installments of interest at the rate or
rates prescribed therefor by the terms of the Securities of such
series to the extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607;
and
(2) all Events of Default with respect to such series of Securities,
other than the nonpayment of the principal of the Securities of such series
which have become due solely by such acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of any series,
and any such default continues for any period of grace provided with respect to
the Securities of such series, the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holder of any such Security (or the Holders of any
such series in the case of Clause (3) above), the whole amount then due and
payable on any such Security (or on the Securities of any such series in the
case of Clause (3) above) for principal (and premium, if any) and interest, with
interest, to the extent that payment of such interest shall be legally
enforceable, upon the overdue principal (and premium, if any) and upon overdue
installments of interest, at such rate or rates as may be prescribed therefor by
the terms of any such Security (or of Securities of any such series in the case
of Clause (3) above); 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 and all other amounts due the Trustee under Section 607.
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If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to any series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities 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 504. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary and
advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607) and of the Securityholders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or 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 Securityholder in any such proceeding.
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Section 505. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series 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 agent and
counsel, be for the ratable benefit of the Holders of the Securities of the
series in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money collected by
the Trustee with respect to a series of Securities pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Securities of such
series and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and interest, 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 premium, if any) and
interest, respectively.
Section 507. 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 Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such 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 such series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to
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affect, disturb or prejudice the rights of any other Holders of Securities of
such series, or to obtain or to seek to obtain priority or preference over any
other such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and proportionate benefit of all the
Holders of all Securities of such series.
Section 508. Unconditional Right of Securityholders to Receive
Principal, Premium and Interest. Notwithstanding any other provisions 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 (subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If the Trustee or
any Securityholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, then and in every such case the Company, the Trustee and the
Securityholders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Securityholders shall
continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders 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 511. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Security 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
Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may be.
Section 512. Control by Securityholders. The Holders of a majority
in principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, 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 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking
or purchase fund or analogous obligation with respect to the Securities of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series.
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 514. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series to which the suit relates, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date).
Section 515. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this SubSection shall not be construed to limit the effect of
SubSection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series 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 with respect to the Securities of such series; and
(4) 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
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for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
(d) 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 602. Notice of Defaults. Within 90 days after the occurrence
of any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Securityholders of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking or purchase fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders of such series; and provided,
further, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, 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 603. Certain Rights of Trustee. Except as otherwise provided
in Section 601:
(a) 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 or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Securityholders pursuant to this
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Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture 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; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
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.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities. The Trustee, any Paying Agent, the
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 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
Section 606. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee 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
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(3) to indemnify the Trustee 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 this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (and premium, if any) or interest
on particular Securities.
Section 608. Disqualification; Conflicting Interests. The Trustee
for the Securities of any series issued hereunder shall be subject to the
provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) the Securities of every
other series issued under this Indenture (i) every series of securities issued
under the Indenture dated as of April 1, 1999, between Union Pacific
Corporation and The Chase Manhattan Bank, Trustee, (ii) every series of
securities issued under (A) the Indenture dated as of January 5, 1996 between
the Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as
Trustee, and (B) the Indenture dated as of December 27, 1990 between the Company
and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee,
(iii) the Trust Indenture dated as of June 1, 1989 between the Port of Corpus
Christi Authority of Neuces County, Texas (the "Port") and The Chase Manhattan
Bank (formerly known as Chemical Bank), as Trustee, under which $40,000,000
aggregate principal amount of Variable Rate Demand Revenue Refunding Bonds,
Series 1989 (Union Pacific Corporation Project) have been issued, the payment of
which bonds is supported by certain payment obligations of the Company to the
Port and assigned by the Port to said Trustee under an Installment Payment and
Bond Amortization Agreement dated as of June 1, 1989 between the Port and the
Company; and (iv) the Trust Indenture dated as of September 1, 1992 between the
Port and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee,
under which $16,650,000 aggregate principal amount of Variable Rate Demand
Revenue Refunding Bonds, Series 1992 (Union Pacific Corporation Project) have
been issued, the payment of which Bonds is supported by certain payment
obligations of the Company to the Port and assigned by the Port to said Trustee
under an Installment Payment and Bond Amortization Agreement dated as of
September 1, 1992 between the Port and the Company.
Section 609. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder with respect to each series of Securities,
which shall be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
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surplus as set forth in its most recent report of condition so published. If at
any time the Trustee with respect to any series of Securities 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 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
(b) The Trustee may resign with respect to any series of Securities
at any time by giving written notice thereof to the Company. If an instrument
of acceptance by a successor Trustee 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.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of that series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608(a) with respect to any series of
Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that series
for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, with respect to the series, or in the case of Clause (4), with respect
to all series, or (ii) subject to Section 514, any Securityholder who has been a
bona fide Holder of a Security of such series for at least 6 months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to the series, or, in the case of Clause (4),
with respect to all series.
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(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of the Trustee with respect to any series of Securities for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee for that series of Securities. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities 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, become the successor Trustee with respect to such series and
supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so
appointed by the Company or the Securityholders of such series and accepted
appointment in the manner hereinafter provided, any Securityholder who has been
a bona fide Holder of a Security of that series for at least 6 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 such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to any series and each appointment of a
successor Trustee with respect to any series by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Securities of that
series as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective with respect to any series as to which it is resigning or being
removed as Trustee, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to any such series; but, on request of
the Company or the successor Trustee, such predecessor Trustee shall, upon
payment of its reasonable charges, if any, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
predecessor Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such predecessor Trustee
hereunder with respect to all or any such series, subject nevertheless to its
lien, if any, provided for in Section 607. 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.
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
predecessor Trustee and each successor Trustee with respect to the Securities of
any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not being succeeded shall continue to be vested in the predecessor
Trustee, and 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
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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.
No successor Trustee with respect to any series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to that series under this
Article.
Section 612. 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 of 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 613. [RESERVED]
Section 614. Appointment of Authenticating Agent. At any time when
any of the Securities remain Outstanding the Trustee, with the approval of 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 exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, 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
Company 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 an Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and,
if other than the Company itself, 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, if other than the Company, to the Company.
The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. 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
Trustee, with the approval of the Company, may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent (other than an
Authenticating Agent appointed at the request of the Company from time to time)
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
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 alternate
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.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
As Authenticating Agent
By:
------------------------------
As Authorized Signatory
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ARTICLE SEVEN
Securityholders' Lists and Reports by
Trustee and Company
Section 701. Company To Furnish Trustee Names and Addresses of
Securityholders. The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, in each year in such form as the Trustee may reasonably require, a
list of the names and addresses of the Holders of Securities of such series
as of such date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished,
provided, no such list need be furnished if the Trustee shall be the Security
Registrar of such series.
Section 702. Preservation of Information; Communications to
Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least 6 months preceding the date of such application,
and such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 702(a), and as to the approximate cost
of mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such
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series or to all Securityholders, as the case may be, whose names and addresses
appear in the information preserved at the time by the Trustee in accordance
with Section 702(a), a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless, within 5 days after such
tender, the Trustee shall mail to such applicants and file with the Commission,
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Trustee, such mailing would be contrary to
the best interests of the Holders of Securities of such series or all
Securityholders, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all Securityholders
of such series or all Securityholders, as the case may be, with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee. (a) Within 60 days after May 15 in
each year. the Trustee shall transmit by mail to all Securityholders, as their
names and addresses appear in the Security Register, a brief report dated as of
such May 15 in accordance with and to the extent required, under Section 313(a)
of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, and also with the Commission.
The Company will notify the Trustee when the Securities are listed on any stock
exchange.
Section 704. Reports by Company. The Company will
(1) 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 (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports
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which may be required pursuant to Section 13 of the Securities Exchange Act
of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules
and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Securityholders, as their names and
addresses appear in the Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
Section 802. Successor Corporation Substituted. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into
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which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein. In the event of any such
conveyance or transfer, the Company as the predecessor corporation may be
dissolved, wound up or liquidated at any time thereafter.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Securityholders. Without the consent of the Holders of any Securities, 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 corporation to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company, or to surrender any right
or power herein conferred upon the Company, for the benefit of the Holders
of the Securities of any or all series (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit
of one or more specified series); or
(3) 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, which shall not be inconsistent
with the provisions of this Indenture; or
(4) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to in
Section 316(a)(2) of the TIA as in effect at the date as of which this
instrument was executed or any corresponding provision in any similar
federal statute hereafter enacted; or
(5) to establish any form of Security, as provided in Article Two,
and to provide for the issuance of any series of Securities as provided in
Article Three and to set forth the terms thereof, and/or to add to the
rights of the Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or
more series of Securities and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 611; or
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of Default
are to be in respect of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit
of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as well as
fully registered form.
No supplemental indenture for the purposes identified in Clauses (2),
(3), (5) or (7) above may be entered into if to do so would adversely affect the
interest of the Holders of Securities of any series.
Section 902. Supplemental Indentures with Consent of Securityholders.
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 or indentures, 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 the Securities of each 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 Maturity of the principal of, or the Stated Maturity of
any premium on, or any installment of interest on, any Security, or reduce
the principal amount thereof or the interest or any premium thereon, or
change the method of computing the amount of principal thereof or interest
thereon on any date or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Maturity or the Stated Maturity, as the case
may be, thereof (or, in the case of redemption or repayment, on or after
the Redemption Date or the Repayment Date, as the case may be); 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 513 or
Section 1007, 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.
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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 Securityholders 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 903. 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, and (subject to Section
601) 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 (except to the extent required
in the case of a supplemental indenture entered into under Section 901(4) or
901(6)) be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. 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 to the extent provided therein.
Section 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities 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
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, 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.
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<PAGE>
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest. With
respect to each series of Securities, the Company will duly and punctually pay
the principal of (and premium, if any) and interest on such Securities in
accordance with their terms and this Indenture, and will duly comply with all
the other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
Section 1002. Maintenance of Office or Agency. The Company will
maintain an office or agency in each Place of Payment where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If at any time the Company shall fail
to maintain such 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 principal Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Section 1003. Money for Security Payments to be Held in Trust. If
the Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on, any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium, if any) or interest on, any Securities of such series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities of such series in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
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<PAGE>
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any such
payment of principal (and premium, if any) or interest on the Securities of
such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture with respect to any series of
Securities 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 in respect of each and every series of Securities as to which it
seeks to discharge this Indenture or, if for any other purpose, all sums so held
in trust by the Company in respect of all Securities, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by 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. The Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company mail to
the Holders of the Securities as to which the money to be repaid was held in
trust, as their names and addresses appear in the Security Register, a notice
that such moneys remain unclaimed and that, after a date specified in the
notice, which shall not be less than 30 days from the date on which the notice
was first mailed to the Holders of the Securities as to which the money to be
repaid was held in trust, any unclaimed balance of such moneys then remaining
will be paid to the Company free of the trust formerly impressed upon it.
The Company initially authorizes the Trustee to act as Paying Agent
for the Securities on its behalf. The Company may at any time and from time to
time authorize one or more Persons to act as Paying Agent in addition to or in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
Section 1004. Statement as to Compliance. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year, a written
statement signed by the principal executive officer, principal financial officer
or principal accounting officer of the Company, stating
(1) that a review of the activities of the Company during such year
and of the Company's performance under this Indenture and under the terms
of the Securities has been made under his supervision;
48
<PAGE>
(2) that to the best of his knowledge, based on such review, the
Company has complied with all conditions and covenants under this Indenture
through such year, or, if there has been a default in the fulfillment of
any such obligation, specifying each such default known to him and the
nature and status thereof; and
(3) the fiscal year end of the Company.
Section 1005. Corporate Existence. Subject to Article Eight the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence.
Section 1006. Limitation on Liens. The Company will not, nor will it
permit any Subsidiary to, create, assume, incur or suffer to exist any Mortgage
upon any stock or indebtedness, whether owned on the date of this Indenture or
hereafter acquired, of any Domestic Subsidiary, to secure any Debt of the
Company or any other Person (other than the Securities), without in any such
case making effective provision whereby all of the Securities Outstanding shall
be directly secured equally and ratably with such Debt, excluding, however, from
the operation of the foregoing provisions of this Section 1006 any Mortgage upon
stock or indebtedness of any corporation existing at the time such corporation
becomes a Domestic Subsidiary, or existing upon stock or indebtedness of a
Domestic Subsidiary at the time of acquisition of such stock or indebtedness,
and any extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any such Mortgage; 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 provided further, that such Mortgage shall be limited to all or such part of
the stock or indebtedness which secured the Mortgage so extended, renewed or
replaced.
Section 1007. Waiver of Certain Covenants. The Company may omit in
respect of any series of Securities, in any particular instance, to comply with
any covenant or condition set forth in Section 1006, if before or after the time
for such compliance the Holders of at least a majority in principal amount of
the Securities at the time Outstanding of such series shall, by Act of such
Securityholders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
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<PAGE>
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. The Company may reserve the
right to redeem and pay before Stated Maturity all or any part of the Securities
of any series, either by optional redemption, sinking or purchase fund or
analogous obligation or otherwise, by provision therefor in the form of Security
for such series established and approved pursuant to Section 202 and on such
terms as are specified in such form or in the Board Resolution or indenture
supplemental hereto with respect to Securities of such series as provided in
Section 301. Redemption of Securities of any series shall be made in accordance
with the terms of such Securities and, to the extent that this Article does not
conflict with such terms, the succeeding Sections of this Article.
Section 1102. Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities redeemable at the election of the Company
shall be evidenced by, or made pursuant to authority granted by, a Board
Resolution. In case of any redemption at the election of the Company of any
Securities of any series, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities of like tenor and terms of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may include provision
for the selection for redemption of portions of the principal of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. Unless otherwise provided in the terms of a
particular series of Securities, the portions of the principal of Securities so
selected for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple thereof,
and the principal amount which remains outstanding shall not be less than the
minimum authorized denomination for Securities of such series. If less than all
the Securities of unlike tenor and terms of a series are to be redeemed, the
particular Securities to be redeemed shall be selected by the Company.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed.
50
<PAGE>
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 of such Security which has been or is to be redeemed.
Section 1104. 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 Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
respective principal amounts) of the Securities to be redeemed, from the
Holder to whom the notice is given;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date;
(5) the place where such Securities are to be surrendered for payment
of the Redemption Price, which shall be the office or agency of the Company
in the Place of Payment; and
(6) that the redemption is on account of a sinking or purchase fund,
or other analogous obligation, if that be 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.
Section 1105. Deposit of Redemption Price. On or prior to 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 1003) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date.
Section 1106. 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) such Securities shall cease to bear
interest. Upon surrender of such Securities for redemption in accordance with
the notice, such Securities shall be paid by the Company at the Redemption
Price. Installments of interest the Stated Maturity of which is on or prior to
the Redemption Date shall be payable to the
51
<PAGE>
Holders of such Securities registered as such on the relevant Regular Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Security, or as otherwise
provided in such Security.
Section 1107. Securities Redeemed in Part. Any Security which is to
be redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment with respect to that series (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 Stated Maturity and of like tenor and terms, 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.
Section 1108. Provisions with Respect to any Sinking Funds. Unless
the form or terms of any series of Securities shall provide otherwise, in lieu
of making all or any part of any mandatory sinking fund payment with respect to
such series of Securities in cash, the Company may at its option (1) deliver to
the Trustee for cancellation any Securities of such series theretofore acquired
by the Company, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company and theretofore delivered to the
Trustee for cancellation or redeemed by the Company other than through the
mandatory sinking fund, and if it does so then (i) Securities so delivered or
credited shall be credited at the applicable sinking fund Redemption Price with
respect to Securities of such series, and (ii) on or before the 60th day next
preceding each sinking fund Redemption Date with respect to such series of
Securities, the Company will deliver to the Trustee (A) an Officers' Certificate
specifying the portions of such sinking fund payment to be satisfied by payment
of cash and by delivery or credit of Securities of such series acquired by the
Company or so redeemed, and (B) such Securities so acquired, to the extent not
previously surrendered. Such Officers' Certificate shall also state the basis
for such credit and that the Securities for which the Company elects to receive
credit have not been previously so credited and were not redeemed by the Company
through operation of the mandatory sinking fund, if any, provided with respect
to such Securities and shall also state that no Event of Default with respect to
Securities of such series has occurred and is continuing. All Securities so
delivered to the Trustee shall be cancelled by the Trustee and no Securities
shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 1106. The Trustee shall select, in the manner provided in
Section 1103, for redemption on such
52
<PAGE>
sinking fund Redemption Date a sufficient principal amount of Securities of such
series to utilize that cash and shall thereupon cause notice of redemption of
the Securities of such series for the sinking fund to be given in the manner
provided in Section 1104 (and with the effect provided in Section 1106) for the
redemption of Securities in part at the option of the Company. Any sinking fund
moneys not so applied or allocated by the Trustee to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
with respect to Securities of such series received by the Trustee and, together
with such payment, shall be applied in accordance with the provisions of this
Section 1108. Any and all sinking fund moneys with respect to Securities of any
series held by the Trustee at the Maturity of Securities of such series, and not
held for the payment or redemption of particular Securities of such series,
shall be applied by the Trustee, together with other moneys, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with respect
to Securities of any series, the Company shall pay to the Trustee in cash a sum
equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 1108.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
UNION PACIFIC CORPORATION
by
-------------------------------
Name:
Title:
Attest:
- ------------------------------
THE CHASE MANHATTAN BANK
by
-------------------------------
Name:
Title:
Attest:
- ------------------------------
54
<PAGE>
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On the ____ day of _____________, 1999 before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that he
resides at ___________; that he is __________________ of Union Pacific
Corporation, one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to that instrument is such corporate seal; that it was affixed by
authority of the board of directors of the corporation; and that he signed his
name thereto by like authority.
______________________________
Name
____________________
[Notarial Seal]
55
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _________ day of __________, 1999 before me personally came
_______, to me known, who, being by me duly sworn, did depose and say that he
resides at _____________; that he is __________________ of The Chase Manhattan
Bank, one of the parties described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal affixed to
that instrument is such corporate seal; that it was affixed by authority of the
board of directors of the corporation; and that he signed his name thereto by
like authority.
______________________________
Name
____________________
[Notarial Seal]
56
<PAGE>
EXHIBIT 5
[UNION PACIFIC LETTERHEAD]
April 9, 1999
Union Pacific Corporation
1717 Main Street
Suite 5900
Dallas, Texas 75201
Re: Union Pacific Corporation $973,000,000 Aggregate Public Offering
Price of Offered Securities
Dear Sirs:
I am Assistant General Counsel of Union Pacific Corporation, a Utah
corporation (the "Company"), and I am rendering this opinion in connection with
the Company's Registration Statement on Form S-3 (the "Registration Statement")
being filed today with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), with respect to the Company's
debt securities (the "Debt Securities"), preferred stock with no par value (the
"Preferred Stock"), warrants to purchase Debt Securities and Preferred Stock
(the "Warrants"), and common stock, par value $2.50 per share (the "Common
Stock"), issuable upon conversion or exchange of Debt Securities or Preferred
Stock (the Debt Securities, Preferred Stock, Warrants and Common Stock are
collectively referred to as the "Offered Securities"), for issuance from time to
time pursuant to Rule 415 under the Act.
I or attorneys under my supervision have examined the form of Indenture
(the "Indenture"), dated as of April 1, 1999, to be entered into between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"), pursuant to
which the Debt Securities may be issued, and I have examined such other
documents and made such other investigations as I have deemed necessary or
advisable for purposes of this opinion. Based thereon, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Utah.
2. The execution and delivery of the Indenture by the Company and the
issuance and sale of Debt Securities have been validly authorized by all
necessary corporate action by the Company.
3. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with and (iii) the Debt Securities shall have been (A) duly authorized,
executed, authenticated and delivered against
<PAGE>
payment therefor or (B) issued upon conversion or exchange of Debt Securities or
Preferred Stock which, by their respective terms, are convertible into or
exchangeable for Debt Securities or upon exercise of Warrants, and the Company
shall have received any additional consideration which is payable upon such
conversion, exchange or exercise, the Debt Securities shall constitute binding
obligations of the Company enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or other
laws relating to or affecting creditors' rights generally and subject to general
principles of equity.
4. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, and (iii) the Preferred Stock shall have been (A) authorized,
issued and sold as contemplated by the Registration Statement and the Company
shall have received consideration therefor or (B) issued upon conversion or
exchange of Debt Securities or Preferred Stock which, by their respective terms,
are convertible into or exchangeable for shares of Preferred Stock or upon
exercise of Warrants and the Company shall have received any additional
consideration which is payable upon such conversion, exchange or exercise, the
Preferred Stock will be validly issued, fully paid and non-assessable.
5. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, and (iii) the Common Stock shall have been issued upon conversion
or exchange of Debt Securities or Preferred Stock which, by their respective
terms, are convertible into or exchangeable for shares of Common Stock, and the
Company shall have received any additional consideration which is payable upon
such conversion or exchange, the Common Stock shall be validly issued, fully
paid and non-assessable.
6. When (i) the Registration Statement shall have become effective under
the Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) a warrant agreement or agreements shall have been
authorized, executed and delivered by the Company and a warrant agent, and (iv)
the Warrants shall have been duly executed and delivered against payment
therefor, the Warrants shall be legally issued.
In rendering the opinion set forth in paragraph 3 above, I have assumed
that the Indenture has been duly executed and delivered by the Trustee and duly
qualified under the Trust Indenture Act of 1939, as amended.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. I also consent to the use of my name under the caption
"Legal Opinions" in the Prospectus contained in the Registration Statement.
Very truly yours,
/s/ RICHARD J. RESSLER
RJR/EJC/bjj
<PAGE>
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Union Pacific Corporation on Form S-3 of our report dated January 21, 1999
(which expresses an unqualified opinion and includes an explanatory paragraph
relating to a change in accounting principle), appearing in and incorporated by
reference in the Annual Report on Form 10-K of Union Pacific Corporation for the
year ended December 31, 1998 and to the reference to us under the heading
"Experts" in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Dallas, Texas
April 9, 1999
<PAGE>
EXHIBIT 24
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Philip F. Anschutz, a Director
of Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Philip F. Anschutz
----------------------------------------
Philip F. Anschutz
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Robert P. Bauman, a Director of
Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Robert P. Bauman
----------------------------------------
Robert P. Bauman
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Richard B. Cheney, a Director
of Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Richard B. Cheney
----------------------------------------
Richard B. Cheney
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, E. Virgil Conway, a Director of
Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ E. Virgil Conway
----------------------------------------
E. Virgil Conway
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Thomas J. Donohue, a Director
of Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Thomas J. Donohue
----------------------------------------
Thomas J. Donohue
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Spencer F. Eccles, a Director
of Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Spencer F. Eccles
----------------------------------------
Spencer F. Eccles
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Ivor J. Evans, a Director of
Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Ivor J. Evans
----------------------------------------
Ivor J. Evans
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Elbridge T. Gerry, Jr., a
Director of Union Pacific Corporation, a Utah corporation (the "Corporation"),
do hereby appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E.
Whitaker, and each of them acting individually, as my true and lawful attorney-
in-fact, each with power to act without the other in full power of substitution,
to execute, deliver and file, for and on my behalf, and in my name and in my
capacity as a Director, a Registration Statement on Form S-3 (or other
appropriate form) for filing with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, and any other documents in support
thereof or supplemental or amendatory thereto, with respect to the issuance of
debentures, notes, and other debt obligations, preferred stock, common stock
issuable upon exchange or conversion of debt obligations or preferred stock
which, by their terms, are exchangeable for or convertible into common stock,
warrants or rights to purchase debt obligations or preferred stock, and foreign
exchange warrants, in a principal amount up to $3,000,000,000 (or the equivalent
in foreign denominated currency), of the Corporation, hereby granting to such
attorneys and each of them full power and authority to do and perform each and
every act and thing whatsoever as such attorney or attorneys may deem necessary
or advisable to carry out fully the intent of the foregoing as I might or could
do personally or in my capacity as Director, hereby ratifying and confirming all
acts and things which such attorney or attorneys may do or cause to be done by
virtue of this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Elbridge T. Gerry, Jr.
----------------------------------------
Elbridge T. Gerry, Jr.
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, William H. Gray, III, a
Director of Union Pacific Corporation, a Utah corporation (the "Corporation"),
do hereby appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E.
Whitaker, and each of them acting individually, as my true and lawful attorney-
in-fact, each with power to act without the other in full power of substitution,
to execute, deliver and file, for and on my behalf, and in my name and in my
capacity as a Director, a Registration Statement on Form S-3 (or other
appropriate form) for filing with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, and any other documents in support
thereof or supplemental or amendatory thereto, with respect to the issuance of
debentures, notes, and other debt obligations, preferred stock, common stock
issuable upon exchange or conversion of debt obligations or preferred stock
which, by their terms, are exchangeable for or convertible into common stock,
warrants or rights to purchase debt obligations or preferred stock, and foreign
exchange warrants, in a principal amount up to $3,000,000,000 (or the equivalent
in foreign denominated currency), of the Corporation, hereby granting to such
attorneys and each of them full power and authority to do and perform each and
every act and thing whatsoever as such attorney or attorneys may deem necessary
or advisable to carry out fully the intent of the foregoing as I might or could
do personally or in my capacity as Director, hereby ratifying and confirming all
acts and things which such attorney or attorneys may do or cause to be done by
virtue of this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ William H. Gray, III
----------------------------------------
William H. Gray, III
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Judith Richards Hope, a
Director of Union Pacific Corporation, a Utah corporation (the "Corporation"),
do hereby appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E.
Whitaker, and each of them acting individually, as my true and lawful attorney-
in-fact, each with power to act without the other in full power of substitution,
to execute, deliver and file, for and on my behalf, and in my name and in my
capacity as a Director, a Registration Statement on Form S-3 (or other
appropriate form) for filing with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, and any other documents in support
thereof or supplemental or amendatory thereto, with respect to the issuance of
debentures, notes, and other debt obligations, preferred stock, common stock
issuable upon exchange or conversion of debt obligations or preferred stock
which, by their terms, are exchangeable for or convertible into common stock,
warrants or rights to purchase debt obligations or preferred stock, and foreign
exchange warrants, in a principal amount up to $3,000,000,000 (or the equivalent
in foreign denominated currency), of the Corporation, hereby granting to such
attorneys and each of them full power and authority to do and perform each and
every act and thing whatsoever as such attorney or attorneys may deem necessary
or advisable to carry out fully the intent of the foregoing as I might or could
do personally or in my capacity as Director, hereby ratifying and confirming all
acts and things which such attorney or attorneys may do or cause to be done by
virtue of this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Judith Richards Hope
----------------------------------------
Judith Richards Hope
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Richard J. Mahoney, a Director
of Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Richard J. Mahoney
----------------------------------------
Richard J. Mahoney
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, John R. Meyer, a Director of
Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ John R. Meyer
----------------------------------------
John R. Meyer
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Thomas A. Reynolds, Jr., a
Director of Union Pacific Corporation, a Utah corporation (the "Corporation"),
do hereby appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E.
Whitaker, and each of them acting individually, as my true and lawful attorney-
in-fact, each with power to act without the other in full power of substitution,
to execute, deliver and file, for and on my behalf, and in my name and in my
capacity as a Director, a Registration Statement on Form S-3 (or other
appropriate form) for filing with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, and any other documents in support
thereof or supplemental or amendatory thereto, with respect to the issuance of
debentures, notes, and other debt obligations, preferred stock, common stock
issuable upon exchange or conversion of debt obligations or preferred stock
which, by their terms, are exchangeable for or convertible into common stock,
warrants or rights to purchase debt obligations or preferred stock, and foreign
exchange warrants, in a principal amount up to $3,000,000,000 (or the equivalent
in foreign denominated currency), of the Corporation, hereby granting to such
attorneys and each of them full power and authority to do and perform each and
every act and thing whatsoever as such attorney or attorneys may deem necessary
or advisable to carry out fully the intent of the foregoing as I might or could
do personally or in my capacity as Director, hereby ratifying and confirming all
acts and things which such attorney or attorneys may do or cause to be done by
virtue of this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Thomas A. Reynolds, Jr.
----------------------------------------
Thomas A. Reynolds, Jr.
<PAGE>
UNION PACIFIC CORPORATION
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS THAT I, Richard D. Simmons, a Director
of Union Pacific Corporation, a Utah corporation (the "Corporation"), do hereby
appoint Richard K. Davidson, Carl W. von Bernuth and Thomas E. Whitaker, and
each of them acting individually, as my true and lawful attorney-in-fact, each
with power to act without the other in full power of substitution, to execute,
deliver and file, for and on my behalf, and in my name and in my capacity as a
Director, a Registration Statement on Form S-3 (or other appropriate form) for
filing with the Securities and Exchange Commission under the Securities Act of
1933, as amended, and any other documents in support thereof or supplemental or
amendatory thereto, with respect to the issuance of debentures, notes, and other
debt obligations, preferred stock, common stock issuable upon exchange or
conversion of debt obligations or preferred stock which, by their terms, are
exchangeable for or convertible into common stock, warrants or rights to
purchase debt obligations or preferred stock, and foreign exchange warrants, in
a principal amount up to $3,000,000,000 (or the equivalent in foreign
denominated currency), of the Corporation, hereby granting to such attorneys and
each of them full power and authority to do and perform each and every act and
thing whatsoever as such attorney or attorneys may deem necessary or advisable
to carry out fully the intent of the foregoing as I might or could do personally
or in my capacity as Director, hereby ratifying and confirming all acts and
things which such attorney or attorneys may do or cause to be done by virtue of
this power of attorney.
IN WITNESS WHEREOF, I have executed this Power of Attorney as of
February 25, 1999.
/s/ Richard D. Simmons
----------------------------------------
Richard D. Simmons
<PAGE>
EXHIBIT 25.2
---------------------------------------------------------------
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) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Union Pacific Corporation
(Exact name of obligor as specified in its charter)
Utah 13-2626465
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1717 Main Street
Suite 5900
Dallas, Texas 75201-4605
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Debt Securities
(Title of the indenture securities)
---------------------------------------------------------------
<PAGE>
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.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
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.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
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 the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as 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. 333-06249, 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.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
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, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, 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, 1999.
THE CHASE MANHATTAN BANK
By /s/ W.B. Dodge
---------------------------------
/s/ W. B. Dodge
Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1998, 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.............................................. $ 11,951
Interest-bearing balances...................................... 4,551
Securities:......................................................
Held to maturity securities...................................... 1,740
Available for sale securities.................................... 48,537
Federal funds sold and securities purchased under
agreements to resell........................................... 29,730
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,379
Less: Allowance for loan and lease losses 2,719
Less: Allocated transfer risk reserve.......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve......................................... 124,660
Trading Assets................................................... 51,549
Premises and fixed assets (including capitalized
leases)........................................................ 3,009
Other real estate owned.......................................... 272
Investments in unconsolidated subsidiaries and
associated companies........................................... 300
Customers' liability to this bank on acceptances
outstanding.................................................... 1,329
Intangible assets................................................ 1,429
Other assets..................................................... 13,563
--------
TOTAL ASSETS..................................................... $292,620
========
-4-
<PAGE>
LIABILITIES
Deposits
In domestic offices............................................ $ 98,760
Noninterest-bearing.............................. $ 39,071
Interest-bearing................................. 59,689
In foreign offices, Edge and Agreement, --------
subsidiaries and IBF's......................................... 75,403
Noninterest-bearing ............................. $ 3,877
Interest-bearing................................ 71,526
Federal funds purchased and securities sold under agreements
to repurchase.................................................. 34,471
Demand notes issued to the U.S. Treasury......................... 1,000
Trading liabilities.............................................. 41,589
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less.................. 3,781
With a remaining maturity of more than one year
through three years......................................... 213
With a remaining maturity of more than three years............. 104
Bank's liability on acceptances executed and outstanding......... 1,329
Subordinated notes and debentures................................ 5,408
Other liabilities................................................ 12,041
TOTAL LIABILITIES................................................ 274,099
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus.................... 0
Common stock..................................................... 1,211
Surplus (exclude all surplus related to preferred stock)......... 10,441
Undivided profits and capital reserves........................... 6,287
Net unrealized holding gains (losses)
on available-for-sale securities................................. 566
Cumulative foreign currency translation adjustments.............. 16
TOTAL EQUITY CAPITAL............................................. 18,521
--------
TOTAL LIABILITIES AND EQUITY CAPITAL............................. $292,620
========
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.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
