As filed with the Securities and Exchange Commission on June 11, 1998
Registration No. 333-. . . . . . . .
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VALERO ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 74-1828067
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
JAY D. BROWNING, ESQ.
Secretary
7990 I.H. 10 West 7990 I.H. 10 West
San Antonio, Texas 78230-4715 San Antonio, Texas 78230-4715
(210) 370-2000 (210) 370-2000
(Address, including zip code and telephone number,(Name, address, including
zip code and telephone
including area code, of registrant's principal executive office)
number, including area code, of agent for service)
Copy to:
R. JOEL SWANSON, ESQ.
Baker & Botts
910 Louisiana
One Shell Plaza
Houston, Texas 77002-4995
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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed
Proposed maximum
maximum aggregate Amount of
Title of each class Amount to be offering price offering registration
of securities to be registered <F1> registered <F1> per unit <F2><F3> price <F2> <F3> fee
<S> <C> <C> <C> <C>
Debt Securities
Common Stock, par value $.01 per share
Preferred Stock, par value $.01 per share
Depositary Shares representing Preferred Stock
Total $600,000,000 100% $600,000,000 $177,000
<FN>
<F1>
(1) Securities registered hereunder may be sold separately, together
or as units with other securities registered hereunder. The
securities hereunder also include such indeterminate number
of shares of Common Stock and Preferred Stock that may be issued upon
conversion of convertible debt securities or convertible preferred
stock.
<F2>
(2) The proposed maximum offering price per unit will be determined
from time to time by the Registrant in connection with the
offering price of all securities registered hereunder.
<F3>
(3) Estimated solely for purposes of calculating the registration fee.
In no event will the aggregate maximum offering price of all
securities issued under this Registration Statement exceed
$600,000,000, or if any Debt Securities are issued with original
issue discount, such greater amount as shall result in proceeds
of $600,000,000 to the Registrant.
</FN>
</TABLE>
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.
SUBJECT TO COMPLETION, DATED JUNE 11, 1998
$600,000,000
VALERO ENERGY CORPORATION
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Valero Energy Corporation (the "Company") may offer and issue from time
to time up to $600,000,000 aggregate principal amount of its securities
consisting of (i) one or more series of debentures, notes or other unsecured
evidences of indebtedness (the "Debt Securities"), (ii) shares of its Common
Stock, par value $.01 per share ("Common Stock"), (iii) shares of its
Preferred Stock, par value $.01 per share ("Preferred Stock") and (iv) shares
of Preferred Stock represented by depositary shares (the "Depositary Shares").
The Debt Securities, Common Stock, Preferred Stock and Depositary Shares
(collectively, the "Securities") may be offered, separately or together, in
amounts, at prices and on terms to be set forth in one or more supplements to
this Prospectus (each a "Prospectus Supplement").
The specific terms of the Securities in respect of which this Prospectus
is being delivered will be set forth in the applicable Prospectus Supplement
and will include, where applicable: (i) in the case of Common Stock, any
initial public offering price, (ii) in the case of Preferred Stock, the
specific title and stated value, any dividend, liquidation, redemption,
conversion, voting and other rights, and any initial public offering price,
(iii) in the case of Depositary Shares, the fractional share of Preferred
Stock represented by each Depositary Share and (iv) in the case of Debt
Securities, the specific title, series, aggregate principal amount, maturity,
rate (or manner of calculation thereof) and time of payment of interest, form
(which may be registered or bearer or certificated or global), authorized
denominations, terms for redemption at the option of the Company or repayment
at the option of the holder, terms for sinking fund payments, covenants and
any initial public offering price.
See "Risk Factors" on page 4 for a discussion of Certain Factors that
should be considered in connection with an investment in the securities
offered hereby.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, Securities covered
by such Prospectus Supplement.
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol "VLO." Any Common Stock offered will be listed, subject to notice
of issuance, on such exchange.
The Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through dealers or agents.
The Prospectus Supplement will set forth the names of any underwriters,
dealers or agents involved in the sale of Securities, the amounts, if any, to
be purchased by underwriters, the compensation, if any, of such underwriters,
dealers or agents and the net proceeds to the Company from the sale of such
Securities less attributable issuance expense. See "Plan of Distribution."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is ______________, 1998
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission (the "Commission"). These securities may
not be sold nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of any offer to buy nor shall
there be any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN
THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR BY ANY UNDERWRITER. THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF
AN OFFER TO BUY ANY OF THE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO
WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THIS PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THOSE TO WHICH THEY RELATE.
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER OR UNDER
THE PROSPECTUS SUPPLEMENT SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE INFORMATION SET FORTH IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT OR IN THE AFFAIRS OF THE COMPANY OR
ANY OF ITS SUBSIDIARIES SINCE THE RESPECTIVE DATES OF THIS PROSPECTUS AND THE
PROSPECTUS SUPPLEMENT.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements, and other information
with the Commission. Such reports, proxy statements, and other information
filed by the Company may be inspected and copied at the public reference
facilities maintained by the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the public reference facilities maintained by
the Commission at the New York Regional Office, Seven World Trade Center, 13th
Floor, New York, New York 10048 and the Chicago Regional Office, Citicorp
Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
materials may be obtained at prescribed rates from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Commission also maintains a site on the World Wide Web at
http://www.sec.gov that contains reports, proxies and information statements
and other information regarding registrants (including the Company) that file
electronically. In addition, documents filed by the Company may be inspected
at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005, on which exchange the Common Stock of the Company is listed.
This Prospectus constitutes a part of a Registration Statement on Form
S-3 (the "Registration Statement") filed by the Company with the Commission
under the Securities Act of 1933, as amended (the "Securities Act"), relating
to the securities offered hereby. This Prospectus omits certain of the
information contained in the Registration Statement, as permitted by the
Commission's rules and regulations. Reference is made to the Registration
Statement and to the exhibits relating thereto for further information with
respect to the Company and the securities offered hereby. Any statements
contained herein concerning the provisions of any document are not necessarily
complete, and in each instance reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Prospectus its
Annual Report on Form 10-K for the year ended December 31, 1997, its Quarterly
Report on Form 10-Q for the quarter ended March 31, 1998, its Proxy Statement
dated March 20, 1998 for the 1998 Annual Meeting of Stockholders and its
Registration Statement on Form 8-A dated July 9, 1997, as amended by Form 8-A
dated July 17, 1997.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14, or 15(d) of the Exchange Act after the date of this
Prospectus and prior to the termination of the offering made hereby shall be
deemed incorporated by reference in this Prospectus and to be a part of this
Prospectus from the date of the filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus and the Prospectus Supplement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus
or the Prospectus Supplement.
Any person receiving a copy of this Prospectus may obtain, without
charge, upon written or oral request, a copy of any of the documents
incorporated by reference herein, except for the exhibits to such documents
(other than the exhibits expressly incorporated by reference into the
information that this Prospectus incorporates). Written requests should be
directed to: Investor Relations, Valero Energy Corporation, P.O. Box 500, San
Antonio, Texas 78292-0500 (telephone 210-370-2139).
FORWARD-LOOKING STATEMENTS
Statements in this Prospectus and any Prospectus Supplement (including
the documents incorporated by reference) concerning the Company which are (a)
projections of revenues, earnings, earnings per share, capital expenditures or
other financial items, (b) statements of plans and objectives for future
operations, including acquisitions, (c) statements of future economic
performance, or (d) statements of assumptions or estimates underlying or
supporting the foregoing are "forward-looking statements" (within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934) that involve various risks and uncertainties. While
these forward-looking statements, and any assumptions upon which they are
based, are made in good faith and reflect the Company's current judgment
regarding the direction of its business, actual results will almost always
vary, sometimes materially, from any estimates, predictions, projections,
assumptions, or other future performance suggested herein. Some important
factors (but not necessarily all factors) that could affect the Company's
sales volumes, growth strategies, future profitability and operating results,
or that otherwise could cause actual results to differ materially from those
expressed in any forward-looking statement include the following: renewal or
satisfactory replacement of the Company's feedstock arrangements as well as
market, political or other forces generally affecting the pricing and
availability of refinery feedstocks and refined products; accidents or other
unscheduled shutdowns affecting the Company's, its suppliers' or its
customers' pipelines, plants, machinery or equipment; excess industry
capacity; competition from products and services offered by other energy
enterprises; changes in the cost or availability of third- party vessels,
pipelines and other means of transporting feedstocks and products; ability to
implement planned capital projects and realize the various assumptions and
benefits projected for such projects; state and federal environmental,
economic, safety and other policies and regulations, any changes therein, and
any legal or regulatory delays or other factors beyond the Company's control;
weather conditions affecting the Company's operations or the areas in which
the Company's products are marketed; rulings, judgments, or settlements in
litigation or other legal matters, including unexpected environmental
remediation costs in excess of any reserves; the introduction or enactment of
federal or state legislation; and changes in the credit ratings assigned to
the Company's debt securities and trade credit. Certain of these risk factors
are more fully discussed in the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 and Form 10-Q for the quarter ended March 31,
1998. The Company undertakes no obligation to publicly release the result of
any revisions to any such forward-looking statements that may be made to
reflect events or circumstances after the date hereof or to reflect the
occurrence of unanticipated events.
THE COMPANY
The Company is one of the five largest independent petroleum refiners and
marketers in the U.S. and is the largest on the Gulf Coast. The Company,
through its subsidiaries, owns and operates four petroleum refineries, three
in Texas at Corpus Christi, Texas City, and Houston, and one in Louisiana at
Krotz Springs, with a combined throughput capacity of approximately 565,000
barrels per day. The Company, through its subsidiaries, also markets refined
products in 31 states and selected export markets.
The Company was incorporated in Delaware in 1981 under the name Valero
Refining and Marketing Company. Prior to July 31, 1997, the Company was a
wholly owned subsidiary of Valero Energy Corporation ("Old Valero"). On July
31, 1997, pursuant to an agreement and plan of distribution between Old Valero
and the Company, Old Valero spun off the Company to Old Valero's stockholders
by distributing all of the Company's common stock on a share for share basis
to holders of record of Old Valero common stock at the close of business on
such date. Immediately after such distribution, Old Valero merged its natural
gas related services business with a wholly owned subsidiary of PG&E
Corporation (the completion of such distribution and merger is collectively
referred to as the "Restructuring"). In connection with the Restructuring,
the Company's name was changed from Valero Refining and Marketing Company to
Valero Energy Corporation and the Company's stock was registered with the
Commission and listed for trading on the New York Stock Exchange.
The Company has its principal executive offices at 7990 I.H. 10 West, San
Antonio, Texas, 78230 and its telephone number is (210) 370-2000.
RECENT DEVELOPMENTS
On May 21, 1998, the Company and Mobil Oil Corporation ("Mobil") signed
an exclusive letter of intent for the proposed purchase by the Company of
Mobil's 155,000 barrels-per-day ("BPD") refinery in Paulsboro, New Jersey
("Paulsboro Refinery"), for $228 million plus an estimated $108 million for
inventories and other working capital items. The Company anticipates
financing the acquisition with cash provided from the Company's existing bank
credit facilities. The acquisition is expected to close by August 1, 1998,
subject to satisfactory completion of the due diligence review, execution of
definitive agreements and satisfaction of legal and regulatory requirements.
After acquiring the Paulsboro Refinery, the Company will own and operate
five refineries in the Gulf Coast and Northeast regions of the country with
total throughput capacity of more than 700,000 BPD, making the Company the
second largest independent refining company in the United States.
USE OF PROCEEDS
The Securities may be offered by the Company from time to time when the
Company determines that market conditions are favorable. Unless otherwise
indicated in the applicable Prospectus Supplement, the net proceeds from the
sale of the Securities will be added to the Company's funds and used for
general corporate purposes, including the repayment of existing indebtedness,
financing of capital projects, additions to working capital and funding
acquisitions of properties in related businesses. The Company expects that it
will raise additional funds from time to time, as needed, through equity or
debt financings, including borrowings under bank credit agreements.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the periods indicated:
- ------------------ -----------------------------------------
Three Months Ended
March 31, Years Ended December 31,
- ------------------ -----------------------------------------
1998 1997 1996 1995 1994 1993
(a) 4.08x 1.74x 2.61x 1.69x 1.50x
(a) For the three months ended March 31, 1998, earnings were
insufficient to cover fixed charges by $8.2 million. Such deficiency was due
primarily to a $37.7 million pre-tax charge to earnings to write down the
carrying amount of the Company's refinery inventories to market value.
Excluding the effect of the inventory write-down, the ratio of earnings to
fixed charges would have been 3.61x.
For the purposes of computing the above ratio, earnings consist of
consolidated income from continuing operations before income taxes and fixed
charges (excluding capitalized interest), with certain other adjustments.
Fixed charges consist of total interest, whether expensed or capitalized,
amortization of debt expense and premiums or discounts related to outstanding
indebtedness, and one-third (the proportion deemed representative of the
interest factor) of rental expense.
The Company paid no dividends on preferred stock with respect to its
continuing operations during the periods indicated; therefore, the ratio of
earnings to combined fixed charges and preferred stock dividends is the same
as the ratio of earnings to fixed charges.
RISK FACTORS
The Securities to be offered hereby may involve a high degree of risk.
Such risks will be set forth in the Prospectus Supplement relating to such
Security. In addition, certain risk factors, if any, relating to the
Company's business will be set forth in a Prospectus Supplement.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the Debt Securities sets forth certain
general terms and provisions of the Debt Securities to which any Prospectus
Supplement may relate. The particular terms of the Debt Securities offered by
any Prospectus Supplement (the "Offered Securities") and the extent, if any,
to which such general provisions may apply to the Offered Securities will be
described in the Prospectus Supplement relating to such Offered Securities.
The Offered Securities may contain any terms and provisions not inconsistent
with the Indenture (hereinafter defined).
The Debt Securities are to be issued in one or more series (each such
series a "Series") under an Indenture dated as of December 12, 1997, to be
supplemented by one or more supplemental indentures (the "Indenture"),
between the Company and The Bank of New York, a New York banking corporation,
as Trustee (the "Trustee"). Section references in parentheses below are to
sections in the Indenture. Wherever particular sections or defined terms of
the Indenture are referred to, such sections or defined terms are incorporated
herein by reference as part of the statement made, and the statement is
qualified in its entirety by such reference. The following statements
are summaries of certain provisions contained in the Indenture. The
Indenture is included as an exhibit to the Registration Statement.
General
The Indenture does not limit the amount of Debt Securities which can be
issued thereunder and provides that debt securities of any Series may be
issued thereunder up to the aggregate principal amount which may be authorized
from time to time by the Company. The Indenture does not limit the amount of
other indebtedness or securities which may be issued by the Company. All Debt
Securities will be unsecured and will not rank below any other unsecured
indebtedness of the Company. The Trustee will authenticate and deliver Debt
Securities executed and delivered to it by the Company as set forth in the
Indenture.
Reference is made to the Prospectus Supplement for the following and
other possible terms of each Series of the Offered Securities in respect of
which this Prospectus is being delivered: (i) the title of the Offered
Securities; (ii) any limit upon the aggregate principal amount of the Offered
Securities; (iii) if other than 100% of the principal amount, the percentage
of their principal amount at which the Offered Securities will be offered;
(iv) the date or dates on which the principal of the Offered Securities will
be payable (or method of determination thereof); (v) the rate or rates (or
method of determination thereof) at which the Offered Securities will bear
interest, if any, the date or dates from which any such interest will accrue
and on which such interest will be payable, and the record dates for the
determination of the holders to whom interest is payable; (vi) if other than
as set forth herein, the place or places where the principal of and interest,
if any, on the Offered Securities will be payable; (vii) the price or prices
at which, the period or periods within which and the terms and conditions upon
which Offered Securities may be redeemed, in whole or in part, at the option
of the Company; (viii) the obligation, if any, of the Company to redeem,
repurchase or repay Offered Securities, whether pursuant to any sinking fund
or analogous provisions or pursuant to other provisions set forth therein or
at the option of a holder thereof; (ix) the events of default or covenants
relating to the Offered Securities, to the extent different from or in
addition to those described herein; (x) whether the Offered Securities will be
issued in certificated and/or book-entry form; (xi) whether the Offered
Securities will be in registered or bearer form and the denominations thereof;
(xii) if applicable, the terms of any right to convert Debt Securities into
shares of Common Stock of the Company or other securities or property; and
(xiii) any other terms or conditions not inconsistent with the provisions of
the Indenture.
Unless otherwise provided in the Prospectus Supplement relating to any
Offered Securities, principal and interest, if any, will be payable, and the
Debt Securities will be transferable and exchangeable, at the office or
offices or agency maintained by the Company for such purposes, provided that
payment of interest on the Debt Securities will be paid at such place of
payment by check mailed to the persons entitled thereto at the addresses of
such persons appearing on the Security Register. Interest on the Debt
Securities will be payable on any interest payment date to the persons in
whose name the Debt Securities are registered at the close of business on the
record date with respect to such interest payment date.
Unless otherwise set forth in the Prospectus Supplement, Debt Securities
may be issued only in fully registered form, without coupons, in minimum
denominations of $1,000 and any integral multiple thereof. Debt Securities
may be exchanged for an equal aggregate principal amount of Debt Securities
of the same Series and date of maturity in such authorized denominations as
may be requested upon surrender of the Debt Securities at an agency of the
Company maintained for such purpose and upon fulfillment of all other
requirements of such agent. No service charge will be made for any
transfer or exchange of the Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 305).
Debt Securities will bear interest at a fixed rate or a floating rate.
Debt Securities bearing no interest or interest at a rate which, at the time
of issuance, is below the prevailing market rate, will be sold at a discount
below their stated principal amount. Special United States federal income tax
considerations applicable to any such discounted Debt Securities or to certain
Debt Securities issued at par which are treated as having been issued at a
discount for United States federal income tax purposes will be described in
the applicable Prospectus Supplement.
The Indenture requires the annual filing by the Company with the Trustee
of a certificate as to compliance with all conditions and covenants contained
in the Indenture. (Section 1005).
The Company will comply with Section 14(e) under the Exchange Act, and
any other tender offer rules under the Exchange Act which may then be
applicable, in connection with any obligation of the Company to purchase
Offered Securities at the option of the holders thereof. Any such obligations
applicable to a Series of Debt Securities will be described in the Prospectus
Supplement relating thereto.
Global Security
The Company anticipates that upon issuance, each Series of Debt
Securities will be represented by a single global security (the "Global
Security") which will be deposited with, or on behalf of, a depositary located
in the United States (the "Depositary") and will be registered in the name of
the Depositary or a nominee of the Depositary. The Company anticipates that
the following provisions will apply to all depositary arrangements.
Upon the issuance of the Global Security, the Depositary or its nominee
will credit on its book-entry registration and transfer system the respective
principal amounts of the individual Debt Securities represented by the Global
Security to the accounts of persons that have accounts with such Depositary
("Participants"). Such accounts shall be designated by the underwriters, if
any. Ownership of beneficial interests in the Global Security will be limited
to Participants or persons that may hold interests through Participants.
Ownership of beneficial interests in the Global Security will be shown on, and
the transfer of that ownership will be effected only through, records
maintained by the Depositary or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to interests of
persons who hold through Participants). The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such laws may impair the ability to transfer or pledge
beneficial interests in the Global Security. So long as the Depositary, or
its nominee, is the registered owner of the Global Security, the Depositary or
the nominee, as the case may be, will be considered the sole owner or holder
of the Debt Securities represented by the Global Security for all purposes
under the Indenture.
Payments of principal of (and premium, if any) and interest (if any) on
individual Debt Securities represented by the Global Security registered in
the name of the Depositary or its nominee and notices required under the
Indenture will be made or delivered to the Depositary or its nominee, as
the case may be, as the registered owner of the Global Security. None of the
Company, the Trustee, any paying agent, or the securities 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
interest of the Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests or to assure
that notices are forwarded to beneficial owners.
The Company expects that the Depositary, upon receipt of any payment of
principal, premium or interest in respect of the Global Security, will
immediately credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interest in the principal amount
of the Global Security as shown on the records of the Depositary. Payments by
Participants to owners of beneficial interests in the 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. However, the Company has no
control over the practices of the Depositary or the Participants and there can
be no assurance that these practices will not change.
If the Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the Company within
60 days, the Company will issue Debt Securities in definitive registered form
in exchange for the Global Security. In addition, the Company may at any time
and in its sole discretion determine not to have any Debt Securities of a
series represented by one or more Global Securities and, in such event, will
issue Debt Securities in definitive registered form in exchange for the Global
Security for such Series. Further, if the Company so specifies with respect
to the Debt Securities of a Series, an owner of a beneficial interest in the
Global Security may, on terms acceptable to the Company, the Trustee and the
Depositary, receive Debt Securities in definitive registered form in exchange
for such beneficial interests. In any such instance, an owner of a beneficial
interest in the Global Security will be entitled to physical delivery of Debt
Securities in definitive registered form equal in principal amount to such
beneficial interest. (Sections 301 and 305).
Except as provided above, owners of beneficial interests in the Global
Security will not be entitled to receive physical delivery of Debt Securities
in definitive form and will not be considered the holders thereof for any
purposes under the Indenture. Accordingly, each person owning a beneficial
interest in a Global Security for a Series of Debt Securities must rely on the
procedures of the Depositary and, if such person is not a Participant, on the
procedures of the Participant through which such person owns its interest, to
exercise any rights of a holder of such securities under the Indenture. The
Depositary may grant proxies and otherwise authorize participants to give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action which a holder is entitled to give or take under the Indenture.
The Company understands that under existing industry practices, in the event
that the Company requests any action of holders or that an owner of a
beneficial interest in the Global Security desires to give or take any action
to which a holder is entitled to give or take under the Indenture, the
Depositary would authorize the Participants holding the relevant beneficial
interests to give or take such action, and such Participants would authorize
beneficial owners owning through such Participants to give or take such action
or would otherwise act upon the instructions of beneficial owners owning
through them.
Certain Covenants of the Company
Certain Definitions. The following terms are defined substantially as
follows in Section 101 of the Indenture and are used herein as so defined.
For the purposes of the following terms, all items shall be determined in
accordance with generally accepted accounting principles, unless otherwise
indicated.
"Consolidated Net Tangible Assets" means the total amount of assets shown
on a consolidated balance sheet of the Company and its Subsidiaries, prepared
in accordance with generally accepted accounting principles, less (i) all
current liabilities (except current maturities of long-term debt and notes
payable) and (ii) goodwill and other intangible assets included on such
balance sheet.
"Funded Debt" means any indebtedness for money borrowed, created, issued,
incurred, assumed or guaranteed which would, in accordance with generally
accepted accounting principles, be classified as long-term debt, but in any
event including all indebtedness for money borrowed, whether secured or
unsecured, maturing more than one year, or extendible at the option of the
obligor to a date more than one year, after the date of determination thereof
(excluding any amount thereof included in current liabilities).
"Mortgages" means mortgages, liens, pledges, security interests or other
encumbrances.
"Principal Property" means any refinery or refinery-related asset,
distribution facility or other real property of the Company or any of its
Subsidiaries which has a net book value exceeding 2.5% of Consolidated Net
Tangible Assets, but not including (1) any property which in the opinion of
the Company is not material to the total business conducted by the Company as
an entirety or (2) any portion of a particular property which is similarly
found not to be material to the use or operation of such property.
"Subsidiary" means (i) any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock, (ii) any
general partnership, joint venture, business trust or similar entity, of which
at the time of determination the Company and/or one or more Subsidiaries owns
or controls directly or indirectly more than 50% or the outstanding
partnership or similar interests and (iii) any limited partnership of which
the Company or any of its Subsidiaries is a general partner.
Limitations on Mortgages. The Company covenants in the Indenture that
when any Debt Securities are outstanding it will not, subject to certain
exceptions, create or assume any Mortgages upon any of the Company's
receivables or other assets or any asset, stock or indebtedness of any
Subsidiary unless such Debt Securities are secured equally and ratably with
(or prior to) such indebtedness for as long as such indebtedness is so
secured. Such exceptions to this covenant include (but are not limited to)
the following: (a) subject to certain limitations, any Mortgage created to
secure all or part of the purchase price of any property or to secure a loan
made to finance the acquisition of the property described in such Mortgage;
(b) subject to certain limitations, any Mortgage existing on any property at
the time of the acquisition thereof (whether acquired directly or indirectly
through the purchase of the entity that owns the asset) or created not later
than 12 months thereafter, or Mortgages created in connection with the
construction or repair of any of the Company's property or created within 12
months thereafter; (c) any mechanic's or materialmen's lien or any lien
related to workmen's compensation or other insurance, and lease deposits and
other deposits arising in the ordinary course of business; (d) any Mortgage
arising by reason of deposits with or the giving of any form of security to
any governmental agency (including for taxes and other governmental charges);
(e) any judgment lien the execution of which has been stayed or which has been
adequately appealed and secured; (f) any Mortgage incidental to the conduct of
the Company's business which was not incurred in connection with the borrowing
of money or the obtaining of advances or credit and which does not materially
interfere with the conduct of the Company's business; (g) any intercompany
Mortgage; (h) any Mortgage created to secure indebtedness and letter of credit
reimbursement obligations incurred in connection with the extension of working
capital financing; (i) any Mortgage existing on the date of the Indenture; (j)
subject to an aggregate limit of $60 million, any Mortgage on cash, cash
equivalents, options or futures positions and other account holdings securing
derivative obligations or otherwise incurred in connection with margin
accounts with brokerage or commodities firms; and (k) subject to an aggregate
limit of 10% of the Company's Consolidated Net Tangible Assets, any Mortgages
not otherwise permitted by any of the other exceptions set forth in the
Indenture. (Section 1101).
Limitations on Sale and Leaseback Transactions. The Indenture provides
that neither the Company nor any Subsidiary may enter into any sale/leaseback
transactions with regard to any Principal Property, providing for the leasing
back to the Company or a Subsidiary by a third party for a period of more than
three years of any asset which has been or is to be sold or transferred by the
Company or such Subsidiary to such third party or to any other person.
Transactions of this nature are permitted, however, under the following
circumstances: (i) the Company would be entitled, pursuant to the "Limitations
on Mortgages" covenant described above, to incur indebtedness secured by a
Mortgage on the property to be leased, without equally and ratably securing
the Debt Securities then outstanding, (ii) the Company during or immediately
after the expiration of 120 days after the effective date of such
sale/leaseback transaction (whether made by the Company or a Subsidiary)
applies to the voluntary retirement of Funded Debt an amount equal to the
value of such transaction (as such amount may be reduced pursuant to the terms
of the Indenture), or (iii) the Company during or immediately after the
expiration of 120 days after the effective date of such sale/leaseback
transaction applies an amount equal to the value of the transaction to the
purchase of another Principal Property asset. In addition, subject to a limit
(on an aggregated basis with indebtedness secured by liens not otherwise
permitted by the limitations on mortgages covenant described above) of 10% of
the Company's Consolidated Net Tangible Assets, the Indenture permits the
Company to enter into sale/leaseback transactions not otherwise permitted by
the express provisions of the Indenture. (Section 1102).
Consolidation, Merger and Certain Sales of Assets. The Indenture does
not contain any covenant that restricts the Company's ability to merge or
consolidate with or into any other corporation, sell or convey all or
substantially all of its assets to any person, firm or corporation or
otherwise engage in restructuring transactions; provided (i) that the
successor corporation (if not the Company) is a U.S. corporation and it
expressly assumes the due and punctual payment of the Debt Securities then
outstanding and the due and punctual performance and observance of all of the
covenants and conditions of the Indenture, and (ii) there is no event of
default immediately following such transaction. (Section 801).
Events of Default
The following are "Events of Default" under the Indenture with respect to
Debt Securities of any series: (i) failure to pay principal of or any premium
on any Debt Security of that series when due and payable; (ii) failure to pay
any interest on any Debt Security of that series when due and payable, and the
continuation of the default for 30 days; (iii) failure to deposit any sinking
fund payment or analogous obligation in respect of any Debt Security of that
series when due; (iv) failure to perform any other covenant, or breach of any
warranty, of the Company in the Indenture (other than a covenant or warranty
included in the Indenture solely for the benefit of a series of Debt
Securities other than such series), continued for 60 days after written notice
is given or received as provided in the Indenture; (v) certain events of
bankruptcy, insolvency, or reorganization; (vi) failure to pay at final
maturity (after the expiration of any applicable grace periods) or upon the
declaration of acceleration of payment of indebtedness for borrowed money of
the Company or any Subsidiary in excess of $25 million, if such indebtedness
is not discharged, or such acceleration is not annulled, within 10 days after
written notice; and (vii) any other Event of Default provided with respect to
Debt Securities of that series. If any Event of Default with respect to Debt
Securities of any series at any time outstanding occurs and is continuing,
either the Trustee or the holders of at least 25% in aggregate principal
amount of the outstanding Debt Securities of that series (or such lesser
amounts as may be provided in the Debt Securities of that series) may declare
the principal amount of all the Debt Securities of that series to be due and
payable immediately. At any time after a declaration or occurrence of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree based on acceleration has been obtained, the
holders of a majority in aggregate principal amount of outstanding Debt
Securities of that series may, under certain circumstances, rescind and annul
the acceleration. (Sections 501 and 502).
The Indenture provides that, subject to the duty of the Trustee during
the continuance of an Event of Default to act with the required standard of
care, the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the holders
unless the holders have offered to the Trustee reasonable indemnity. Subject
to such provisions for the indemnification of the Trustee, the holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
any series will 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
Debt Securities of that series. The Company is required to furnish the
Trustee annually with a statement of the performance by the Company of certain
of its obligations under the Indenture and of any default in such performance.
Modification and Waiver
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures (which conform to the provisions of the Trust
Indenture Act of 1939) without the consent of the holders in order to, among
other things: (i) secure any Debt Securities; (ii) evidence the assumption by
a successor Person of the obligations of the Company; (iii) add further
covenants for the protection of the holders or additional events of default;
(iv) cure any ambiguity or correct any inconsistency in the Indenture, so long
as such action will not adversely affect the interests of the holders; (v)
establish the form or terms of Debt Securities of any series; and (vi)
evidence the acceptance of appointment by a successor trustee. (Section 901).
Modifications of and amendments to the Indenture may also be made by the
Company and the Trustee with the consent of the holders of not less than a
majority in aggregate principal amount of the outstanding Debt Securities of
each series affected by the modification or amendment; provided that no such
modification or amendment may, without the consent of the holder of each
outstanding Debt Security affected thereby, (i) change the stated maturity of
the principal of or any installment of interest on any Debt Security, (ii)
reduce the principal amount of, or any premium or interest on, any Debt
Security, (iii) reduce the amount of principal of discounted Debt Securities
payable upon acceleration of the stated maturity thereof, (iv) change the
currency of payment for any Debt Security, (v) impair the right to institute
suit for the enforcement of any payment with respect to any Debt Security, or
(vi) reduce the percentage in principal amount of outstanding Debt Securities
of any series, the consent of whose holders is required for modification or
amendment of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults. (Section 902).
The holders of a majority in aggregate principal amount of the
outstanding Debt Securities of each series, on behalf of all holders of Debt
Securities of that series, may waive any past default under the Indenture with
respect to Debt Securities of that series, except a default in the payment of
principal, premium or interest, or a covenant or provision that cannot be
modified or amended without the consent of the holders of each outstanding
Debt Security affected thereby. (Section 512).
Discharge
The Indenture provides that the Company will be discharged from any and
all obligations in respect of any series of Debt Securities, except for
certain surviving obligations to register the transfer or exchange of the Debt
Securities and any right to receive additional amounts under the Indenture,
(i) if all Debt Securities previously authenticated and delivered under the
Indenture have been delivered to the Trustee for cancellation, or (ii) if (a)
all such Debt Securities have become due and payable or will become due and
payable within one year at Stated Maturity or by redemption, if applicable,
and (b) the Company deposits with the Trustee, in trust, money in an amount
sufficient to pay the entire indebtedness of such Debt Securities on the dates
the payments are due in accordance with the terms of the Debt Securities. To
exercise the rights described in (ii) above, the Company is required, among
other things, to deliver to the Trustee an opinion of counsel and an officers'
certificate to the effect that all conditions precedent relating to the
satisfaction and discharge of the Indenture have been complied with. (Section
401).
Notices
Notices to holders will be given by mail to the addresses of such holders
as they appear in the Security Register.
Governing Law
The Indenture is, and the Debt Securities will be, governed by and
construed in accordance with the laws of the State of New York.
Concerning the Trustee
The Bank of New York, a New York banking corporation, is the Trustee
under the Indenture, with an address at Bank of New York, Corporate Trust
Office, 101 Barclay Street, Floor 21 West, New York, New York 10286. The
Bank of New York also serves as trustee in connection with a financing
completed in December 1997 by the Company.
The holders of a majority in principal amount of the outstanding
securities issued under the Indenture will have the right to direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee, subject to certain exceptions. The Indenture
provides that if an Event of Default occurs (and is not cured), the Trustee
will be required, in the exercise of its power, to use the degree of care of a
prudent person in the conduct of such person's own affairs. Subject to such
provisions, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request of any holder of
securities issued under the Indenture, unless such holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense and then only to the extent required by the terms of the
Indenture. The Trustee may resign at any time or may be removed by the
Company. If the Trustee resigns, is removed or becomes incapable of acting as
Trustee or if a vacancy occurs in the office of the Trustee for any cause, a
successor Trustee shall be appointed in accordance with the provisions of the
Indenture.
If the Trustee shall have or acquire any "conflicting interest" within
the meaning of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and the Indenture. The Trust Indenture Act also
contains certain limitations on the right of the Trustee, as a creditor of the
company, to obtain payment of claims in certain cases, or to realize on
certain property received by it in respect of such claims, as security or
otherwise.
DESCRIPTION OF THE COMMON STOCK
The authorized Common Stock of the Company consists of 150,000,000
shares, par value $.01 per share. At June 1, 1998, there were 56,191,707
shares of Common Stock issued and outstanding. The following description of
the Common Stock is subject to the detailed provisions of the Company's
Restated Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), and its By-laws as currently in effect (the "Bylaws"). This
description does not purport to be complete or to give full effect to the
terms of the provisions of statutory or common law and is subject to, and
qualified in its entirety by reference to, the Certificate of Incorporation,
the Bylaws, and the Rights Agreement, dated as of July 17, 1997 between the
Company and Harris Trust and Savings Bank, as rights agent, all of which are
exhibits to the Registration Statement of which this Prospectus is a part.
After the requirements with respect to preferential dividends upon any
outstanding Preferred Stock have been met, the holders of the Common Stock
shall be entitled to receive such dividends as may be declared from time to
time by the Board of Directors. For information regarding restrictions on
payments of dividends, see the Prospectus Supplement applicable to any
issuance of Common Stock. Each share of Common Stock shall entitle the holder
thereof to one vote for each share held. At present, the Common Stock trades
with the Preferred Share Purchase Rights. See "Description of the Preferred
Share Purchase Rights."
In the event of any liquidation of the Company, after the holders of the
Preferred Stock of each series and any other class of stock ranking prior to
the Common Stock in respect of distributions of assets on liquidation of the
Company shall have been paid in full the amount to which they respectively
shall be entitled or a sum sufficient for such payment in full shall have been
set apart, the remaining net assets of the Company shall be distributed pro
rata to the holders of the Common Stock in accordance with their respective
rights and interests, to the exclusion of the holders of the Preferred Stock
and any other such class of stock ranking prior to the Common Stock.
The Certificate of Incorporation of the Company provides that directors
are to be elected in three classes of as nearly an equal number as possible
for terms of three years. As a result, a person acquiring a majority of the
Common Stock may be unable to promptly gain control of the Company's Board of
Directors. In general, the Certificate of Incorporation requires the
affirmative vote of holders of at least two-thirds of the voting stock of the
Company not owned by an "interested stockholder" (the beneficial owner of 15%
or more of the Company's outstanding voting stock) prior to certain "Business
Combinations" (as defined in the Certificate of Incorporation), unless the
Business Combination is approved by the "Continuing Directors" (as defined in
the Certificate of Incorporation) or meets certain requirements regarding
price and procedure or certain other transactions involving the issuance of
the securities of the Company. The foregoing provisions may have certain
anti-takeover effects in that a person gaining voting control of the Company
may be prevented from or delayed in taking actual control. For purposes of
the provision of the Certificate of Incorporation described above, "voting
stock" would mean all stock entitled to vote in an election of directors at
the time the determination is being made. Accordingly, Preferred Stock does
not constitute "voting stock" unless, at the time the determination is being
made, such Preferred Stock is entitled to vote for the election of two
directors, as described above.
The Company's Certificate of Incorporation also contains a provision that
limits the liability of the Company's directors, as permitted by the Delaware
General Corporation Law. The provision eliminates the personal liability of
directors to the Company and its stockholders for monetary damages for
breaches of their fiduciary duty of care. As a result, stockholders may be
unable to recover monetary damages against directors for negligent or grossly
negligent acts or omissions in violation of their duty of care. The provision
does not change the liability of a director for breach of his duty of loyalty
to the Company or to stockholders, acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, the
declaration or payment of dividends or improper repurchases, or redemptions of
the Company's stock in violation of Delaware law or in respect of any
transaction from which a director received an improper personal benefit.
As a Delaware corporation, the Company is subject to Section 203 of the
Delaware General Corporation Law. In general, Section 203 prevents an
"interested stockholder" (defined generally as a person owning 15% or more of
a corporation's outstanding voting stock) from engaging in a "business
combination" (as defined) with a Delaware corporation for three years
following the date such person became an interested stockholder unless (i)
before such person became an interested stockholder, the board of directors of
the corporation approved the transaction in which the interested stockholder
became an interested stockholder or approved the business combination; (ii)
upon consummation of the transaction that resulted in the interested
stockholder becoming an interested stockholder, the interested stockholder
owns at least 85% of the voting stock of the corporation outstanding at the
time the transaction commenced (excluding certain shares); or (iii) following
the transaction in which such person became an interested stockholder, the
business combination is approved by the board of directors of the corporation
and authorized at a meeting of stockholders by the affirmative vote of the
holders of at least two-thirds of the outstanding voting stock of the
corporation not owned by the interested stockholder. Under Section 203, the
restrictions described above also do not apply to certain business
combinations proposed by an interested stockholder following the announcement
or notification of one of certain extraordinary transactions involving the
corporation and a person who had not been an interested stockholder during the
previous three years or who became an interested stockholder with the approval
of a majority of the corporation's directors, if such extraordinary
transaction is approved or not opposed by a majority of the directors who were
directors prior to any person's becoming an interested stockholder during the
previous three years or were recommended for election or elected to succeed
such directors by a majority of such directors. For purposes of Section 203,
"voting stock" means stock entitled to vote generally in elections for the
board of directors.
The Common Stock has no preemptive, redemption or conversion rights.
Harris Trust and Savings Bank, Chicago, Illinois, acts as Transfer Agent
and Registrar for the Common Stock.
DESCRIPTION OF THE PREFERRED SHARE PURCHASE RIGHTS
On July 31, 1997 the Board of Directors of the Company declared a
dividend of one Preferred Share Purchase Right (the "Rights") for each
outstanding share of Common Stock to the stockholders of record on that date.
In addition, the Board determined that each authorized but then unissued share
of Common Stock issued on or after such date would also be accompanied by a
Right. Except as set forth below, each Right will entitle the registered
holder to purchase from the Company one one-hundredth of a share of Junior
Participating Preferred Stock, Series I ("Junior Preferred Stock"), at a price
of $100 per one one-hundredth of a share, subject to adjustment (the "Purchase
Price"). The description and terms of the Rights are set forth in the
Company's Rights Agreement, dated as of July 17, 1997 between the Company and
Harris Trust and Savings Bank, as rights agent (the "Rights Agreement").
The Rights Agreement provides that, until the earlier to occur of (i) 10
days following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired beneficial ownership
of 15% or more of the outstanding shares of the Company's Common Stock or (ii)
10 business days (or such later date as may be determined by action of the
Company's Board prior to such time as any person or group becomes an Acquiring
Person) following the commencement of, or announcement of an intention to
make, a tender offer or exchange offer the consummation of which would result
in the beneficial ownership by a person or group of 15% or more of such
outstanding Common Stock (the earlier of such dates being called the "Rights
Separation Date"), the Rights will be transferred with and only with the
Company's Common Stock. As soon as practicable following the Rights
Separation Date, separate certificates evidencing the Rights (the "Right
Certificates") will be mailed to holders of record of the Company's Common
Stock as of the close of business on the Rights Separation Date and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Rights Separation Date. The
Rights will expire on June 30, 2007 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of shares of Junior Preferred
Stock or other securities or property issuable, upon exercise of the Rights
will be subject to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the shares of Junior Preferred Stock, (ii) upon the grant
to holders of shares of Junior Preferred Stock of certain rights or warrants
to subscribe for or purchase shares of Junior Preferred Stock at a price, or
securities convertible into shares of Junior Preferred Stock with a conversion
price, less than the then current market price of shares of Junior Preferred
Stock or (iii) upon the distribution to holders of shares of Junior Preferred
Stock of evidences of indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or dividends payable in
shares of Junior Preferred Stock or of subscription rights or warrants (other
than those referred to above).
The number of outstanding Rights and the number of one one-hundredths of
a share of Junior Preferred Stock issuable upon exercise of each Right are
also subject to adjustment in the event of a stock split of the Company's
Common Stock or a stock dividend on the Company's Common Stock payable in the
Company's Common Stock or subdivisions, consolidations or combinations of the
Company's Common Stock occurring, in any such case, prior to the Rights
Separation Date.
Shares of Junior Preferred Stock purchasable upon exercise of the Rights
will not be redeemable. Each share of Junior Preferred Stock will be entitled
to a minimum preferential quarterly dividend payment of $1 per share but will
be entitled to an aggregate dividend of 100 times the dividend declared per
share of the Company's Common Stock. In the event of liquidation, the holders
of shares of Junior Preferred Stock will be entitled to a minimum preferential
liquidation payment of $100 per share but will be entitled to an aggregate
payment of 100 times the payment made per share of the Company's Common Stock.
Each share of Junior Preferred Stock will have 100 votes, voting together with
the Company's Common Stock. Finally, in the event of any merger,
consolidation or other transaction in which the Company's Common Stock is
exchanged, each share of Junior Preferred Stock will be entitled to receive
100 times the amount received per share of the Company's Common Stock. These
rights will be protected by customary antidilution provisions.
Because of the nature of the Junior Preferred Stock's dividend,
liquidation and voting rights, the value of the one one-hundredth interest in
a share of Junior Preferred Stock purchasable upon exercise of each Right
should approximate the value of one share of the Company's Common Stock.
In the event that after the Rights Separation Date, the Company is
acquired in a merger or other business combination transaction, or if 50% or
more of its consolidated assets or earning power are sold, proper provision
will be made so that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of Common Stock of the acquiring company which at
the time of such transaction will have a market value of two times the
exercise price of the Right. In the event that any person or group of
affiliated or associated persons becomes the beneficial owner of 15% or more
of the outstanding Common Stock, proper provision shall be made so that each
holder of a Right, other than Rights beneficially owned by the Acquiring
Person (which will thereafter be void), will thereafter have the right to
receive upon exercise that number of shares of Common Stock having a market
value of two times the exercise price of the Right.
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 15% or more of the outstanding
Common Stock and prior to the acquisition by such person or group of 50% or
more of the outstanding Common Stock, the Company's Board may exchange the
Rights (other than Rights owned by such person or group which have become
void), in whole or in part, at an exchange ratio of one share of Common Stock,
or one one-hundredth of a share of Junior Preferred Stock (or of a share of a
class or series of Preferred Stock having equivalent rights, preferreds and
privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Junior Preferred Stock will be
issued (other than fractions which are integral multiples of one one-hundredth
of a share of Junior Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of shares of Junior
Preferred Stock on the last trading day prior to the date of exercise.
At any time prior to the acquisition by a person or group of affiliated
or associated persons of beneficial ownership of 15% or more of the
outstanding Common Stock, the Company's Board may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (the "Redemption Price"). The
redemption of the Rights may be made effective at such time, on such basis and
with such conditions as the Company's Board, in its sole discretion, may
establish. Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
The terms of the Rights may be amended by the Company's Board without the
consent of the holders of the Rights, including an amendment to lower certain
thresholds described above to not less than the greater of (i) the sum of
.001% and the largest percentage of the outstanding Common Stock then known to
the Company to be beneficially owned by any person or group of affiliated or
associated persons and (ii) 10%, except that from and after such time as any
person becomes an Acquiring Person no such amendment may adversely affect the
interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
The Rights may have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Company's Board, except pursuant to an offer
conditioned on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business combination approved by
the Company's Board since the Rights may be redeemed by the Company at the
redemption price prior to the time that a person or group has acquired
beneficial ownership of 15% or more of the Common Stock.
The foregoing summary of certain terms of the Rights is qualified in its
entirety by reference to the Rights Agreement, a form of which was filed as an
exhibit to the Company's Registration Statement on Form S-8 (File No.
333-31709, July 21, 1997).
DESCRIPTION OF THE PREFERRED STOCK
General
The Company is authorized to issue 20,000,000 shares of Preferred Stock,
par value $.01 per share, of which no Preferred Stock was outstanding at the
date hereof. Subject to the limitations prescribed by the Certificate of
Incorporation, the Board of Directors is authorized to fix the number of
shares constituting each series of Preferred Stock and the designations and
powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof, including such
provisions as may be desired concerning voting, redemption, dividends,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by resolution of the Board of
Directors.
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of a particular series of
Preferred Stock will be described in the Prospectus Supplement relating to
that series. If so indicated in the Prospectus Supplement, the terms of any
such series may differ from the terms set forth below. The description of
certain provisions of the Preferred Stock set forth below and in any
Prospectus Supplement does not purport to be complete and is in all respects
subject to and qualified in its entirety by reference to the applicable
provisions of the Company's Certificate of Incorporation and Bylaws and any
applicable certificate of designations supplementary to the Certificate of
Incorporation designating terms of a series of Preferred Stock which will be
filed with the Commission in connection with the offering of such series of
Preferred Stock.
The issuance of Preferred Stock could adversely affect the voting power,
dividend rights and other rights of holders of Common Stock. Issuance of
Preferred Stock also could, depending on the terms of such issue, either
impede, delay, prevent or facilitate a merger, tender offer or change in
control of the Company. Although the Board of Directors is required to make a
determination as to the best interests of the stockholders of the Company when
issuing Preferred Stock, the Board could act in a manner that would discourage
an acquisition attempt or other transaction that some, or a majority, of the
stockholders might believe to be in the best interests of the Company or in
which stockholders might receive a premium for their shares over the then
prevailing market price. Management believes that the availability of
Preferred Stock will provide the Company with increased flexibility in
structuring possible further financing and acquisitions and in meeting other
needs that might arise.
Terms
The Preferred Stock offered hereby will be issued in one or more series.
The Preferred Stock will, when issued, be fully paid and nonassessable by the
Company and will have no preemptive rights.
Reference is made to the Prospectus Supplement relating to the particular
series of Preferred Stock offered thereby for specific terms, including: (i)
the title and stated value of such Preferred Stock; (ii) the number of shares
of such Preferred Stock offered, the liquidation preference per share and the
offering price of such Preferred Stock; (iii) the dividend rate(s), period(s)
and/or payment date(s) or method(s) of calculation thereof applicable to such
Preferred Stock; (iv) the date from which dividends on such Preferred Stock
shall accumulate, if applicable; (v) the procedures for any auction and
remarketing, if any, for such Preferred Stock; (vi) the provision for a
sinking fund, if any, for such Preferred Stock; (vii) the provision for
redemption, if applicable, of such Preferred Stock; (viii) any listing of such
Preferred Stock on any securities exchange; (ix) the terms and conditions, if
applicable, upon which such Preferred Stock will be convertible into Common
Stock of the Company, including the conversion price (or manner of calculation
thereof); (x) whether interests in such Preferred Stock will be represented by
Depositary Shares; (xi) any other specific terms, preferences, rights,
limitations or restrictions of such Preferred Stock; (xii) a discussion of
federal income tax considerations applicable to such Preferred Stock; (xiii)
the relative ranking and preferences of such Preferred Stock as to dividend
rights and rights upon liquidation, dissolution or winding up of the Company;
and (xiv) any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to dividend
rights and rights upon liquidation, dissolution or winding up of the Company.
Rank
Unless otherwise specified in the Prospectus Supplement, the Preferred
Stock will, with respect to dividend rights and rights upon liquidation,
dissolution or winding up of the Company, rank (i) senior to all classes or
series of Common Stock of the Company, and to all equity securities ranking
junior to such Preferred Stock; (ii) on a parity with all equity securities
issued by the Company the terms of which specifically provide that such equity
securities rank on a parity with the Preferred Stock; and (iii) junior to all
equity securities issued by the Company the terms of which specifically
provide that such equity securities rank senior to the Preferred Stock. The
term "equity securities" does not include convertible debt securities.
Dividends
Holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds legally available therefor, cash dividends at such rates and on
such dates as will be set forth in the applicable Prospectus Supplement.
Different series of the Preferred Stock may be entitled to dividends at
different rates or based upon different methods of determination. Such rates
may be variable or fixed or both. Each such dividend shall be payable to
holders of record as they appear on the share transfer books of the Company on
such record dates as shall be fixed by the Board of Directors of the Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, as provided in the applicable Prospectus Supplement.
If Preferred Stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of the Company
of any other series ranking, as to dividends, on a parity with or junior to
the Preferred Stock of such series for any period unless (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for such payment on the Preferred Stock of
such series for all past dividend periods and the then current dividend period
or (ii) if such series of Preferred Stock does not have a cumulative dividend,
full dividends for the then current dividend period have been or
contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Preferred Stock of such
series. When dividends are not paid in full (or a sum sufficient for such
full payment is not so set apart) upon Preferred Stock of any series and the
shares of any other series of Preferred Stock ranking on a parity as to
dividends with the Preferred Stock of such series, all dividends declared upon
Preferred Stock of such series and any other series of Preferred Stock ranking
on a parity as to dividends with such Preferred Stock shall be declared pro
rata so that the amount of dividends declared per share of Preferred Stock of
such series and such other series of Preferred Stock shall in all cases bear
to each other the same ratio that accrued dividends per share on the Preferred
Stock of such series (which shall not include any accumulation in respect of
unpaid dividends for prior dividend periods if such Preferred Stock does not
have a cumulative dividend) and such other series of Preferred Stock bear to
each other. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on Preferred Stock of
such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period, and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for the then current
divided period, no dividends (other than in shares of Common Stock or other
capital shares ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation) shall be declared or paid or set aside for
payment or other distribution shall be declared or made upon the Common Stock,
or any other capital shares of the Company ranking junior to or on a parity
with the Preferred Stock of such series as to dividends or upon liquidation,
nor shall any shares of Common Stock, or any other capital shares of the
Company ranking junior to or on a parity with the Preferred Stock of such
series as to dividends or upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any monies be paid to or made available for
a sinking fund for the redemption of any such shares) by the Company (except
by conversion into or exchange for other capital shares of the Company ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation).
Redemption
The terms, if any, on which shares of a series of Preferred Stock may be
subject to mandatory redemption or redemption at the option of the Company, as
a whole or in part, will be set forth in the Prospectus Supplement applicable
to such series.
Rights Upon Liquidation
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the Company, then, before any distribution or payment shall be made to the
holders of Common Stock or any other class or series of capital shares of the
Company ranking junior to such series of Preferred Stock, the holders of each
series of Preferred Stock shall be entitled to receive out of assets of the
Company legally available for distribution to stockholders liquidating
distributions in the amount of the liquidation preference per share (set forth
in the applicable Prospectus Supplement), plus an amount equal to accrued and
unpaid dividends for the then current dividend period and, if such series of
Preferred Stock is cumulative, for all dividend periods prior thereto, all as
set forth in the Prospectus Supplement with respect to such shares.
Voting Rights
Holders of the Preferred Stock will not be entitled to vote, except as
otherwise from time to time required by law or as indicated in the applicable
Prospectus Supplement.
Conversion Rights
The terms and conditions, if any, upon which any series of Preferred
Stock is convertible into shares of Common Stock will be set forth in the
applicable Prospectus Supplement relating thereto. Such terms will include
the number of shares of Common Stock into which the shares of Preferred Stock
are convertible, the conversion price (or manner of calculation thereof), the
conversion period, provisions as to whether conversion will be at the option
of the holders of the Preferred Stock or the Company, the events requiring an
adjustment of the conversion price and provisions affecting conversion in the
event of the redemption of such series of Preferred Stock.
Stockholder Liability
Applicable Delaware law provides that no stockholder, including holders
of Preferred Stock, shall be personally liable for the acts and obligations of
the Company and that the funds and property of the Company shall be the only
recourse for such acts or obligations.
Registrar and Transfer Agent
The registrar and transfer agent for the Preferred Stock will be set
forth in the applicable Prospectus Supplement.
DESCRIPTION OF THE DEPOSITARY SHARES
General
The Company may issue receipts ("Depositary Receipts") for Depositary
Shares, each of which will represent a fractional interest of a share of a
particular series of Preferred Stock, as specified in the applicable
Prospectus Supplement. Shares of Preferred Stock of each series represented
by the Depositary Shares will be deposited under a separate Deposit Agreement
(each, a "Deposit Agreement") among the Company, the depositary named therein
(the "Preferred Stock Depositary") and the holders from time to time of the
Depositary Receipts. Subject to the terms of the Deposit Agreement, each
owner of a Depositary Receipt will be entitled, in proportion to the
fractional interest of a share of a particular series of Preferred Stock
represented by the Depositary Shares evidenced by such Depositary Receipt, to
all the rights and preferences of the Preferred Stock represented by such
Depositary Shares (including dividend, voting, conversion, redemption and
liquidation rights). The Company anticipates that the following provisions
will apply to any Deposit Agreements which may be entered into by the Company.
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the
issuance and delivery of the Preferred Stock by the Company to the Preferred
Stock Depositary, the Company will cause the Preferred Stock Depositary to
issue, on behalf of the Company, the Depositary Receipts. Upon completion,
copies of the applicable form of Deposit Agreement and Depositary Receipt may
be obtained from the Company upon request.
Dividends and Other Distributions
The Preferred Stock Depositary will distribute all cash dividends or
other cash distributions received in respect of the Preferred Stock to the
record holders of Depositary Receipts evidencing the related Depositary Shares
in proportion to the number of such Depositary Receipts owned by such holders,
subject to certain obligations of holders to file proofs, certificates and
other information and to pay certain charges and expenses to the Preferred
Stock Depositary.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain obligations of
holders to file proofs, certificates and other information and to pay certain
charges and expenses to the Preferred Stock Depositary, unless the Preferred
Stock Depositary determines that is it not feasible to make such distribution,
in which case the Preferred Stock Depositary may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders.
Withdrawal of Stock
Upon surrender of the Depositary Receipts at the corporate trust office
of the Preferred Stock Depositary (unless the related Depositary Shares have
previously been called for redemption), the holders thereof will be entitled
to delivery at such office, to or upon such holders' order, of the number of
whole or fractional shares of the Preferred Stock and any money or other
property represented by the Depositary Shares evidenced by such Depositary
Receipts. Holders of Depositary Receipts will be entitled to receive whole or
fractional shares of the related Preferred Stock on the basis of the
proportion of Preferred Stock represented by each Depositary Share as
specified in the applicable Prospectus Supplement, but holders of such shares
of Preferred Stock will not thereafter be entitled to receive Depositary
Shares therefor. If the Depositary Receipts delivered by the holder evidence
a number of Depositary Shares in excess of the number of Depositary Shares
representing the number of shares of Preferred Stock to be withdrawn, the
Preferred Stock Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of Depositary Shares.
Redemption of Depositary Shares
Whenever the Company redeems shares of Preferred Stock held by the
Preferred Stock Depositary, the Preferred Stock Depositary will redeem as of
the same redemption date the number of Depositary Shares representing shares
of the Preferred Stock so redeemed, provided the Company shall have paid in
full to the Preferred Stock Depositary the redemption price of the Preferred
Stock to be redeemed plus an amount equal to any accrued and unpaid dividends
thereon to the date fixed for redemption. The redemption price per Depositary
Share will be equal to the redemption price and any other amounts per share
payable with respect to the Preferred Stock. If fewer than all the Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be
selected pro rata (as nearly as may be practicable without creating
fractional Depositary Shares) or by any other equitable method determined by
the Company.
From and after the date fixed for redemption, all dividends in respect of
the shares of Preferred Stock so called for redemption will cease to accrue,
the Depositary Shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the Depositary Receipts
evidencing the Depositary Shares so called for redemption will cease, except
the right to receive any moneys payable upon such redemption and any money or
other property to which the holders of such Depositary Receipts were entitled
upon such redemption upon surrender thereof to the Preferred Stock Depositary.
Voting of the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Preferred Stock Depositary will mail
the information contained in such notice of meeting to the record holders of
the Depositary Receipts evidencing the Depositary Shares which represent such
Preferred Stock. Each record holder of Depositary Receipts evidencing
Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the
Preferred Stock Depositary as to the exercise of the voting rights pertaining
to the amount of Preferred Stock represented by such holder's Depositary
Shares. The Preferred Stock Depositary will vote the amount of Preferred
Stock represented by such Depositary Shares in accordance with such
instructions, and the Company will agree to take all reasonable action which
may be deemed necessary by the Preferred Stock Depositary in order to enable
the Preferred Stock Depositary to do so. The Preferred Stock Depositary will
abstain from voting the amount of Preferred Stock represented by such
Depositary Shares to the extent it does not receive specific instructions from
the holders of Depositary Receipts evidencing such Depositary Shares. The
Preferred Stock Depositary shall not be responsible for any failure to carry
out any instruction to vote, or for the manner or effect of any such vote
made, as long as any such action or non-action is in good faith and does not
result from negligence or wilful misconduct of the Preferred Stock Depositary.
Liquidation Preference
In the event of the liquidation, dissolution or winding up of the
Company, whether voluntary or involuntary, the holders of each Depositary
Receipt will be entitled to the fraction of the liquidation preference
accorded each share of Preferred Stock represented by the Depositary Share
evidenced by such Depositary Receipt, as set forth in the applicable
Prospectus Supplement.
Conversion
The Depositary Shares, as such, are not convertible into Common Stock or
any other securities or property of the Company. Nevertheless, if so
specified in the applicable Prospectus Supplement relating to an offering of
Depositary Shares, the Depositary Receipts may be surrendered by holders
thereof to the Preferred Stock Depositary with written instructions to the
Preferred Stock Depositary to instruct the Company to cause conversion of the
Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipts into whole shares of Common Stock, other shares of
Preferred Stock of the Company or other shares of capital stock, and the
Company, upon receipt of such instructions and any amounts payable in respect
thereof, would cause the conversion thereof utilizing the same procedures as
those provided for delivery of Preferred Stock to effect such conversion. If
the Depositary Shares evidenced by a Depositary Receipt are to be converted in
part only, a new Depositary Receipt or Receipts would be issued for any
Depositary Shares not to be converted. No fractional shares of Common Stock
would be issued upon conversion, and if such conversion would result in a
fractional share being issued, an amount would be paid in cash by the Company
equal to the value of the fractional interest based upon the closing price of
the Common Stock on the last business day prior to the conversion.
Amendment and Termination of the Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may
at any time be amended by agreement between the Company and the Preferred
Stock Depositary. However, any amendment that would materially and adversely
alter the rights of the holders of Depositary Receipts or be materially and
adversely inconsistent with the rights granted to holders of the related
Preferred Stock will not be effective unless such amendment is approved by the
holders of at least two-thirds of the Depositary Shares evidenced by the
Depositary Receipts then outstanding. No amendment will impair the right,
subject to certain exceptions in the Deposit Agreement, of any holder of
Depositary Receipts to surrender any Depositary Receipt with instructions to
deliver to the holder the related Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply with law.
Every holder of an outstanding Depositary Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby.
The Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the Preferred Stock Depositary if a majority
of each series of Preferred Stock affected by such termination consents to
such termination, whereupon the Preferred Stock Depositary shall deliver or
make available to each holder of Depositary Receipts, upon surrender of the
Depositary Receipts held by such holder, such number of whole or fractional
shares of Preferred Stock as are represented by the Depositary Shares
evidenced by such Depositary Receipts together with any other property held by
the Preferred Stock Depositary with respect to such Depositary Receipt. In
addition, the Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed, (ii) there shall have
been a final distribution in respect of the related Preferred Stock in
connection with any liquidation, dissolution or winding up of the Company and
such distribution shall have been distributed to the holders of Depositary
Receipts evidencing the Depositary Shares representing such Preferred Stock or
(iii) each share of the related Preferred Stock shall have been converted into
capital stock of the Company not so represented by Depositary Shares.
Charges of Preferred Stock Depositary
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of the Deposit Agreement. In
addition, the Company will pay the fees and expenses of the Preferred Stock
Depositary in connection with the performance of its duties under the Deposit
Agreement.
However, holders of Depositary Receipts will pay certain other transfer
and other taxes and governmental charges as well as the fees and expenses of
the Preferred Stock Depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
Resignation and Removal of Depositary
The Preferred Stock Depositary may resign at any time by delivering to
the Company notice of its election to do so, and the Company may at any time
remove the Preferred Stock Depositary, any such resignation or removal to take
effect upon the appointment of a successor Preferred Stock Depositary. A
successor Preferred Stock Depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
Miscellaneous
The Preferred Stock Depositary will forward to holders of Depositary
Receipts any reports and communications from the Company which are received by
the Preferred Stock Depositary with respect to the related Preferred Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if
it is prevented from or delayed in, by law or any circumstances beyond its
control, performing its obligations under the Deposit Agreement. The
obligations of the Company and the Preferred Stock Depositary under the
Deposit Agreement will be limited to performing their duties thereunder in
good faith and without negligence (in the case of any action or inaction in
the voting of Preferred Stock represented by the Depositary Shares), gross
negligence or willful misconduct, and the Company and the Preferred Stock
Depositary will not be obligated to prosecute or defend any legal proceeding
in respect of any Depositary Receipts, Depositary Shares or shares of
Preferred Stock represented thereby unless satisfactory indemnity is
furnished. The Company and the Preferred Stock Depositary may rely on written
advice of counsel or accountants, or information provided by persons
presenting shares of Preferred Stock represented thereby for deposit, holders
of Depositary Receipts or other persons believed in good faith to be competent
to give such information, and on documents believed in good faith to be
genuine and signed by a proper party.
In the event the Preferred Stock Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on
the one hand, and the Company, on the other hand, the Preferred Stock
Depositary shall be entitled to act on such claims, requests or instructions
received from the Company.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them or may sell the Securities to investors
directly or through agents. Any such underwriter or agent involved in the
offer and sale of the Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Securities at a fixed price or
prices, which may be changed, at prices related to the prevailing market
prices at the time of sale or at negotiated prices. The Company also may,
from time to time, authorize underwriters acting as their agents to offer and
sell the Securities upon the terms and conditions as are set forth in the
applicable Prospectus Supplement. In connection with the sale of Securities,
underwriters may be deemed to have received compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of Securities for whom they may act as agent.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
are set forth in the applicable Prospectus Supplement. Underwriters, dealers
and agents participating in the distribution of the Securities may be deemed
to be underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize dealers acting as their agents to solicit offers by certain
institutions to purchase Securities from them at the public offering price set
forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date or dates stated
in such Prospectus Supplement. Each Contract will be for an amount not less
than, and the aggregate principal amount of Securities sold pursuant to
Contracts shall be not less nor more than, the respective amounts stated in
the applicable Prospectus Supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions, and other institutions but will in all cases be subject to the
approval of the Company. Contracts will not be subject to any conditions
except (i) the purchase by an institution of the Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of
any jurisdiction in the United States to which such institution is subject,
and (ii) if the Securities are being sold to underwriters, the Company shall
have sold to such underwriters the total principal amount of the Securities
less the principal amount thereof covered by Contracts.
The Securities (other than Common Stock) will be a new issue of
securities with no established trading market. If so indicated in the
applicable Prospectus Supplement, any underwriters or agents to or through
whom Securities are sold by the Company for public offering and sale may make
a market in such Securities, but such underwriters and agents 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 Securities, other than Common Stock.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company in the
ordinary course of business.
LEGAL OPINIONS
The validity of the Securities will be passed upon for the Company by Mr.
Gregory C. King, Esq., Vice President and General Counsel of the Company. Mr.
King is an employee of the Company and at June 1, 1998, beneficially owned
13,586 shares of the Company's Common Stock (including shares held under
employee benefit plans) and held options under employee stock option plans of
the Company to purchase an additional 62,101 shares of the Company's Common
Stock. None of such shares or options were granted in connection with the
offering of the Securities. Certain legal matters in connection with the
Securities may be passed upon for underwriters, dealers or agents by Baker &
Botts, Houston, Texas.
EXPERTS
The audited consolidated financial statements of the Company contained in
the Company's Annual Report on Form 10-K incorporated by reference herein have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their reports with respect thereto, and are included herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports.
The reports of independent public accountants relating to the audited
consolidated financial statements of the Company in any documents filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the
date of this Prospectus and prior to the termination of the offering will, to
the extent covered by consents thereto filed with the Commission, be
incorporated by reference in reliance upon the authority of such independent
public accountants as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses payable by the Company
in connection with the issuance and distribution of the securities being
registered. All the amounts shown are estimates, except the registration
fee.
SEC Registration Fee . . . . . . . . . . . $177,000
Printing and Engraving Expenses. . . . . . 15,000
Legal Fees and Expenses. . . . . . . . . . 40,000
Accounting Fees and Expenses . . . . . . . 30,000
Fees and Expenses of Trustee and Counsel . 10,000
Miscellaneous. . . . . . . . . . . . . . . 10,000
Total. . . . . . . . . . . . . . . . . . $282,000
Item 15. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation contains a provision that
eliminates the personal liability of a director to the Company and its
stockholders for monetary damages for breach of fiduciary duty as a director
to the extent currently allowed under the Delaware General Corporation Law.
Except as provided below, if a director were to breach such duty in performing
his duties as a director, neither the Company nor its stockholders could
recover monetary damages from the director, and the only course of action
available to the Company's stockholders would be equitable remedies, such as
an action to enjoin or rescind a transaction involving a breach of fiduciary
duty. To the extent certain claims against directors are limited to equitable
remedies, the provision in the Company's Certificate of Incorporation may
reduce the likelihood of derivative litigation and may discourage stockholders
or management from initiating litigation against directors for breach of their
fiduciary duty. Additionally, equitable remedies may not be effective in many
situations. If a stockholder's only remedy is to enjoin the completion of the
Board of Directors' action, this remedy would be ineffective if the
stockholder does not become aware of a transaction or event until after it has
been completed. In such a situation, it is possible that the stockholders and
the Company would have no effective remedy against the directors. Under the
Company's Certificate of Incorporation, liability for monetary damages remains
for (i) any breach of the duty of loyalty to the Company or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) payment of an improper
dividend or improper repurchase or redemption of the Company's stock under
Section 174 of the Delaware General Corporation Law, or (iv) any transaction
from which the director derived an improper personal benefit.
Under Article V of the Certificate of Incorporation and Article VIII of
the Company's Bylaws as currently in effect and an indemnification agreement
with the Company's officers and directors (the "Indemnification Agreement"),
each person who is or was a director or officer of the Company or a subsidiary
of the Company, or who serves or served any other enterprise or organization
at the request of the Company or a subsidiary of the Company, shall be
indemnified by the Company to the full extent permitted by the Delaware
General Corporation Law.
Under such law, to the extent that such person is successful on the
merits or otherwise in defense of a suit or proceeding brought against him by
reason of the fact that he is or was a director or officer of the Company, or
serves or served any other enterprise or organization at the request of the
Company, he shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred in connection with such action.
Under such law, the Company generally has the power to indemnify its
present and former directors, officers, employees and agents against expenses
and liabilities incurred by them in connection with any suit to which they
are, or are threatened to be made, a party by reason of their serving in such
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the Company, and
with respect to any criminal action, they had no reasonable cause to believe
their conduct was unlawful. With respect to suits by or in the right of the
Company, however, indemnification is generally limited to attorney's fees and
other expenses and such indemnification is not available if such person is
adjudged to be liable to the Company unless the court determines that
indemnification is appropriate.
The Indemnification Agreement provides directors and officers with
specific contractual assurance that indemnification and advancement of
expenses will be available to them regardless of any amendments to or
revocation of the indemnification provisions of the Company's Bylaws. The
Indemnification Agreement provides for indemnification of directors and
officers against both stockholder derivative claims and third-party claims.
Sections 145(a) and 145(b) of the Delaware General Corporation Law, which
grant corporations the power to indemnify directors and officers, specifically
authorize lesser indemnification in connection with derivative claims than in
connection with third-party claims. The distinction is that Section 145(a),
concerning third-party claims, authorizes expenses and judgments and amounts
paid in settlement (as is provided in the Indemnification Agreement), while
Section 145(b), concerning derivative suits, generally authorizes only
indemnification of expenses. However, Section 145(f) expressly provides that
the indemnification and advancement of expenses provided by or granted
pursuant to the subsections of Section 145 shall not be exclusive of any other
rights to which those seeking indemnification or advancement of expenses may
be entitled under any agreement. No Delaware case directly answers the
question whether Delaware's public policy would support this aspect of the
Indemnification Agreement under the authority of Section 145(f), or would
cause its invalidation because it does not conform to the distinctions
contained in Sections 145(a) and 145(b).
Delaware corporations also are authorized to obtain insurance to protect
officers and directors from certain liabilities, including liabilities against
which the corporation cannot indemnify its directors and officers. The
Company currently has in effect a directors' and officers' liability insurance
policy.
Item 16. Exhibits.
**1.1 Form of Underwriting Agreement (Debt Securities).
**1.2 Form of Underwriting Agreement (Common Stock).
**1.3 Form of Underwriting Agreement (Preferred Stock).
3.1 Amended and Restated Certificate of Incorporation of Valero Energy
Corporation (formerly known as Valero Refining and Marketing
Company)--incorporated by reference from Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (File No. 333-27013,
filed May 13, 1997).
3.2 By-Laws of Valero Energy Corporation (formerly known as Valero
Refining and Marketing Company)--incorporated by reference from
Exhibit 3.2 to the Company's Registration Statement on Form
S-1 (File No. 333-27013, filed May 13, 1997).
3.3 Rights Agreement, dated as of July 17, 1997, between Valero
Refining and Marketing Company and Harris Trust and Savings Bank,
as Rights Agent--incorporated by reference from Exhibit 4.1 to the
Company's Registration Statement on Form S-8 (Commission File No.
333-31709, filed July 21, 1997).
*3.4 Indenture, between Valero Energy Corporation and Bank of New York,
dated as of December 12, 1997.
**3.5 Terms of Debt Securities and Preferred Stock.
**4.1 Form of Debt Securities and Preferred Stock.
*5.1 Opinion of Gregory C. King, Esq. with respect to legality of the
Securities.
*12.1 Computation of ratio of earnings to fixed charges.
*24.1 Consent of Arthur Andersen LLP.
*24.2 Consent of Gregory C. King (contained in Exhibit 5.1).
25.1 Powers of Attorney (contained on page II-5 of the Registration
Statement as originally filed).
*26.1 Form T-1 Statement of Eligibility and Qualification Under the Trust
Indenture Act of 1939 of a Corporation Designated to Act as Trustee.
____________________
* Filed herewith.
** The Company will file as an exhibit to a Current Report on Form 8-K
(i) any underwriting agreement relating to Securities offered hereby,
(ii) the instruments setting forth the terms of any Debt Securities or
Preferred Stock, or (iii) any required opinion of counsel to the
Company as to certain tax matters relative to Securities offered hereby.
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8 and the information required
to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
(d) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
(e) The undersigned Registrant hereby undertakes (1) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus which
at that time meets the requirements of Section 10(a) of the Securities Act,
and relating to the securities offered at competitive bidding, as contained in
the Registration Statement, together with any supplements thereto, and (2) to
file an amendment to the Registration Statement reflecting the results of
bidding, the terms of the reoffering and related matters to the extent
required by the applicable form, not later than the first use, authorized by
the Registrant after the opening of bids, of a prospectus relating to the
securities offered at competitive bidding, unless no further public offering
of such securities by the Registrant and no reoffering of such securities by
the purchasers is proposed to be made.
(f) The undersigned Registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended
(the "Act"), in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Antonio, State of Texas, on June
11, 1998.
VALERO ENERGY CORPORATION
(Registrant)
By: /s/ William E. Greehey
William E. Greehey
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints William E. Greehey, Gregory C. King, and
Jay D. Browning, or any of them, each with power to act without the other, his
true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all subsequent pre- and post-effective amendments
and supplements to this registration statement, and to file the same, or cause
to be filed the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Director, Chairman
of the Board and
Chief Executive
Officer (Principal
/s/ William E. Greehey Executive Officer) June 11, 1998
William E. Greehey
Chief Financial
Officer (Principal
Financial and
/s/ John D. Gibbons Accounting Officer) June 11, 1998
John D. Gibbons
Director
/s/ Edward C. Benninger and President June 11, 1998
Edward C. Benninger
/s/ Ronald K. Calgaard Director June 11, 1998
Ronald K. Calgaard
/s/ Robert G. Dettmer Director June 11, 1998
Robert G. Dettmer
/s/ Ruben M. Escobedo Director June 11, 1998
Ruben M. Escobedo
/s/ James L. Johnson Director June 11, 1998
James L. Johnson
/s/ Lowell H. Lebermann Director June 11, 1998
Lowell H. Lebermann
/s/ Susan Kaufman Purcell Director June 11, 1998
Susan Kaufman Purcell
VALERO ENERGY CORPORATION
AND
THE BANK OF NEW YORK, as Trustee
Indenture
Dated as of December 12, 1997
Debt Securities
VALERO ENERGY CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of December 12, 1997
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . .608
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . .608
(a)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . .608
Sec. 311(a) . . . . . . . . . . . . . . . . . . . . . . . .609
(b) . . .. . . . . . . . . . . . . . . . . . . . . .605
Sec. 312(a) . . . . . . . . . . . . . . . . . . . . . . 605, 703
(b). . . . . . . . . . . . . . . . . . . . . . . 701, 702
(c). . . . . . . . . . . . . . . . . . . . . . . . . .702
Sec. 313(a). . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b)(1) . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c). . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d). . . . . . . . . . . . . . . . . . . . . . . . 703(c)
Sec. 314(a)(1) . . . . . . . . . . . . . . . . . . . . . . . .704
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . .704
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . .704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . 1005
(b). . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(d). . . . . . . . . . . . . . . . . . . . Not Applicable
(e). . . . . . . . . . . . . . . . . . . . . . . . . .102
Sec. 315(a). . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b). . . . . . . . . . . . . . . . . . . . . . . . . .602
(c). . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d). . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . .601(a)(1), (c)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . .601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . .601(c)(3)
(e). . . . . . . . . . . . . . . . . . . . . . . . . .514
Sec. 316(a)(1)(A). . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . .513
(a)(2) . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . .508
(c). . . . . . . . . . . . . . . . . . . . Not Applicable
Sec. 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . .503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . .504
(b). . . . . . . . . . . . . . . . . . . . . . . . . 1003
Sec. 318(a). . . . . . . . . . . . . . . . . . . . . . . . . .108
__________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE SIXTEEN. . . . . . . . . . . . . . . . . . . . . . .74vii
ARTICLE ONE . . . . . . . . . . . . 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper. . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request" and "Company Order . . . . . . . . . . . 3
Consolidated Net Tangible Assets. . . . . . . . . . . . . 3
Controlled Subsidiary . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . 3
Coupon. . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest. . . . . . . . . . . . . . . . . . . . 3
Dollars" or "$. . . . . . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . . . 4
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest. . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . 4
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . 4
Mortgages . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security. . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . 6
Person. . . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment. . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security. . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price. . . . . . . . . . . . . . . . . . . . . 6
Registered Security . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . 6
Sale and Leaseback Transactions . . . . . . . . . . . . . 7
Security" or "Securities. . . . . . . . . . . . . . . . . 7
Security Register" and "Security Registrar. . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . 8
United States Alien . . . . . . . . . . . . . . . . . . . 8
U.S. Depository" or "Depository . . . . . . . . . . . . . 8
Vice President. . . . . . . . . . . . . . . . . . . . . . 8
Voting Stock. . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 102. Compliance Certificates and Opinions . . . . . . 8
SECTION 103. Form of Documents Delivered to Trustee . . . . . 9
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . 9
SECTION 105. Notices etc. to Trustee and Company. . . . . . . 12
SECTION 106. Notice to Holders of Securities; Waiver. . . . . 12
SECTION 107. Language of Notices, etc.. . . . . . . . . . . . 13
SECTION 108. Conflict with Trust Indenture Act. . . . . . . . 13
SECTION 109. Effect of Headings and Table of Contents . . . . 14
SECTION 110. Successors and Assigns . . . . . . . . . . . . . 14
SECTION 111. Separability Clause. . . . . . . . . . . . . . . 14
SECTION 112. Benefits of Indenture. . . . . . . . . . . . . . 14
SECTION 113. Governing Law. . . . . . . . . . . . . . . . . . 14
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . 14
ARTICLE TWO. . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication. 15
ARTICLE THREE. . . . . . . . . . . . . . . . . . . . . . . . . 16
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . 16
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating . 19
SECTION 304. Temporary Securities . . . . . . . . . . . . . . 20
SECTION 305. Registration, Transfer and Exchange. . . . . . . 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 24
SECTION 307. Payment of Interest; Interest Rights Preserved . 26
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . 27
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . 28
SECTION 310. Computation of Interest. . . . . . . . . . . . . 28
SECTION 311. Cusip Numbers. . . . . . . . . . . . . . . . . . 28
ARTICLE FOUR . . . . . . . . . . . . . . . . . . . . . . . . . 29
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . 29
SECTION 401. Satisfaction and Discharge of Indenture. . . . . 29
SECTION 402. Application of Trust Money . . . . . . . . . . . 30
ARTICLE FIVE . . . . . . . . . . . . . . . . . . . . . . . . . 30
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 501. Events of Default. . . . . . . . . . . . . . . . 30
SECTION 502. Acceleration of Maturity; Rescission
and Annulment. . . . . . . . . . . . . . . . . . 32
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . . . . . 33
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . 34
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. . . . . . . 35
SECTION 506. Application of Money Collected . . . . . . . . . 35
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . 36
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies . . . . . . . 37
SECTION 510. Rights and Remedies Cumulative.. . . . . . . . . 37
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . 37
SECTION 512. Control by Holders of Securities . . . . . . . . 37
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . 38
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . 38
SECTION 515. Waiver of Stay, Extension or Usury Laws. . . . . 38
ARTICLE SIX. . . . . . . . . . . . . . . . . . . . . . . . . . 39
THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 601. Certain Duties and Responsibilities. . . . . . . 39
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . 40
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . 41
SECTION 604. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . . . . 42
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . 42
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . 42
SECTION 607. Compensation and Reimbursement . . . . . . . . . 42
SECTION 608. Corporate Trustee Required; Eligibility. . . . . 43
SECTION 609. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . 43
SECTION 610. Acceptance of Appointment by Successor. . . . . 45
SECTION 611. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . 46
SECTION 612. Appointment of Authenticating Agent. . . . . . . 47
ARTICLE SEVEN. . . . . . . . . . . . . . . . . . . . . . . . . 49
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . . 49
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders. . . . . . . . . . . . . . 49
SECTION 702. Preservation of Information; Communications
To Holders. . . . . . . . . . . . . . . . . . . 49
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . 49
SECTION 704. Reports by Company. . . . . . . . . . . . . . . 50
ARTICLE EIGHT . . . . . . . . . . . . . . . . . . . . . . . . 51
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE. . . . . . . 51
SECTION 801. Consolidations and Mergers of Company
and Sales, Leases and Conveyances Permitted
Subject to Certain Conditions . . . . . . . . . 51
SECTION 802. Rights and Duties of Successor Corporation. . . 51
SECTION 803. Officers' Certificate and Opinion of Counsel. . 52
ARTICLE NINE. . . . . . . . . . . . . . . . . . . . . . . . . 52
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . 52
SECTION 901. Supplemental Indentures without Consent
of Holders. . . . . . . . . . . . . . . . . . . 52
SECTION 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . . . . 53
SECTION 903. Execution of Supplemental Indentures. . . . . . 54
SECTION 904. Effect of Supplemental Indentures . . . . . . . 54
SECTION 905. Conformity with Trust Indenture Act . . . . . . 55
SECTION 906. Reference in Securities to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . 55
ARTICLE TEN . . . . . . . . . . . . . . . . . . . . . . . . . 55
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1001. Payment of Principal, Premium, if any,
and Interest . . . . . . . . . . . . . . . . . 55
SECTION 1002. Maintenance of Office or Agency. . . . . . . . 55
SECTION 1003. Money for Securities Payments to be
Held in Trust. . . . . . . . . . . . . . . . . 56
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . 58
SECTION 1005. Statement as to Compliance. . . . . . . . . . . 60
SECTION 1006. Waiver of Certain Covenants. . . . . . . . . . 60
ARTICLE ELEVEN. . . . . . . . . . . . . . . . . . . . . . . . 60
NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1101. Limitations on Mortgages . . . . . . . . . . . 60
SECTION 1102. Limitations on Sale and Leaseback
Transactions . . . . . . . . . . . . . . . . . 64
ARTICLE TWELVE. . . . . . . . . . . . . . . . . . . . . . . . 66
REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . . . . 66
SECTION 1201. Applicability of Article . . . . . . . . . . . 66
SECTION 1202. Election to Redeem; Notice to Trustee. . . . . 66
SECTION 1203. Selection by Trustee of Securities to
be Redeemed. . . . . . . . . . . . . . . . . . 66
SECTION 1204. Notice of Redemption . . . . . . . . . . . . . 67
SECTION 1205. Deposit of Redemption Price. . . . . . . . . . 68
SECTION 1206. Securities Payable on Redemption Date. . . . . 68
SECTION 1207. Securities Redeemed in Part. . . . . . . . . . 69
ARTICLE THIRTEEN. . . . . . . . . . . . . . . . . . . . . . . 69
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1301. Applicability of Article . . . . . . . . . . . 69
SECTION 1302. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . 70
SECTION 1303. Redemption of Securities for Sinking Fund. . . 70
ARTICLE FOURTEEN. . . . . . . . . . . . . . . . . . . . . . . 71
REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . . . . . 71
SECTION 1401. Applicability of Article . . . . . . . . . . . 71
ARTICLE FIFTEEN . . . . . . . . . . . . . . . . . . . . . . . 71
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . 71
SECTION 1501. Purposes for Which Meetings May Be Called. . . 71
SECTION 1502. Call, Notice and Place of Meetings . . . . . . 71
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . 72
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . 72
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings. . . . . . . . . . 73
SECTION 1506. Counting Votes and Recording Action
of Meetings. . . . . . . . . . . . . . . . . . 74
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . 75
SECTION 1601 Securities in Foreign Currencies. . . . . . . . 75
ARTICLE SIXTEEN . . . . . . . . . . . . . . . . . . . . . . . 74
MISCELLANEOUS PROVISIONS
SECTION 1601 Securities in Foreign Currencies. . . . . . . . 74
INDENTURE, dated as of December 12, 1997, between VALERO ENERGY
CORPORATION, a Delaware corporation (hereinafter called the "Company"),
having its principal office at 7990 West IH 10, San Antonio, Texas
78230-4715, and THE BANK OF NEW YORK, a New York banking corporation, as
Trustee (hereinafter called the "Trustee") having its Corporate Trust
Office at 101 Barclay Street, Floor 21 West, New York, New York 10286.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as hereinafter
provided.
The Company has duly authorized the execution and delivery of this
Indenture and all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the sum of one
dollar duly paid by the Company to the Trustee, the receipt of which is
hereby acknowledged, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders, as follows:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or
of series thereof, as follows
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain matters,
including, without limitation, taxes imposed on certain Holders, and which
are owing to such Holders.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule
thereunder.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 612 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in connection
with which the term is used or in the financial community of such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements
and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
"Board of Directors" means either the Board of Directors of the
Company or the Executive Committee thereof.
"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 any day other than a day on which banking
institutions in The City of New York or in the City of San Antonio, Texas
are authorized or required by law to close, except as may otherwise be
provided in the form of Securities of any particular series pursuant to the
provisions of this Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties 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.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the
Board, the President, a Vice President or by the Treasurer, and by an
Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets
shown on a consolidated balance sheet of the Company and its Subsidiaries,
prepared in accordance with generally accepted accounting principles, less
(i) all current liabilities (except current maturities of long-term debt
and notes payable) and (ii) goodwill and other intangible assets included
on such balance sheet.
"Controlled Subsidiary" means any corporation more than 80% of the
outstanding Voting Stock, except for qualifying shares, of which shall at
the time be owned directly or indirectly by the Company.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be administered,
which office is located at 101 Barclay Street, Floor 21 West, New York, New
York 10286.
"Corporation" includes corporations, associations, companies and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" or any similar reference shall mean the currency of
the United States, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means any indebtedness for money borrowed, created,
issued, incurred, assumed or guaranteed which would, in accordance with
generally accepted accounting principles, be classified as long-term debt,
but in any event including all indebtedness for money borrowed, whether
secured or unsecured, maturing more than one year, or extendible at the
option of the obligor to a date more than one year, after the date of
determination thereof (excluding any amount thereof included in current
liabilities).
"Holder", when used with respect to any Security, means in the case of
a Registered Security, the Person in whose name the Security is registered
in the Security Register and in the case of a Bearer Security, the bearer
thereof and, when used with respect to any coupon, means the bearer
thereof.
"Indenture" means this instrument 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 each Officers' Certificate delivered to the Trustee pursuant to
Section 303.
"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, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section
1004, includes such Additional Amounts.
"Interest Payment Date" means the Stated Maturity of an instalment of
interest on the applicable Securities.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security or an instalment of principal becomes
due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, request
for redemption or otherwise.
"Mortgages" means mortgages, liens, pledges, security interests or
other encumbrances.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, a Vice President or the Treasurer, and by an
Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company, and delivered 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 counsel for the Company, or other counsel acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal thereof to be due and payable upon acceleration pursuant to
Section 502.
"Outstanding" when used with respect to Securities means, as of the
date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities and any coupons thereto appertaining,
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, the
principal amount of an Original Issue Discount Security that may be counted
in making such determination and that shall be deemed to be Outstanding for
such purposes shall be equal to the amount of the principal thereof that
could be declared to be due and payable pursuant to the terms of such
Original Issue Discount Security at the time the taking of such action by
the Holders of such requisite principal amount is evidenced to the Trustee
as provided in Section 104(a), and, provided further, that Securities owned
beneficially by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor, other than Securities
purchased in connection with the distribution or trading thereof, shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or 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, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified
as provided pursuant to Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or
in lieu of a lost, destroyed, mutilated or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the lost, destroyed, mutilated or
stolen Security or the Security to which a mutilated, destroyed, lost or
stolen coupon appertains.
"Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed means the price at which it is to be redeemed as determined
pursuant to the provisions of this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on a Registered
Security on any Interest Payment Date means the date, if any, specified in
such Security as the "Regular Record Date".
"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 (whether or not designated by a number or a
word or words added before or after the title "vice president"), the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, 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.
"Sale and Leaseback Transactions" has the meaning specified in Section
1102.
"Security" or "Securities" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"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 or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means (i) any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the shares of Voting Stock, (ii)
any general partnership, joint venture, business trust or similar entity,
of which at the time of determination the Company and/or one or more
Subsidiaries owns or controls directly or indirectly more than 50% or the
outstanding partnership or similar interests and (iii) any limited
partnership of which the Company or any of its Subsidiaries is a general
partner. "Wholly-owned", when used with reference to a Subsidiary, means a
Subsidiary of which all of the outstanding capital stock (except for
qualifying shares) or partnership or similar interests, as applicable, is
owned by the Company or by one or more wholly-owned Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall
mean each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to the
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a
particular provision thereof shall mean such Act or provision, as the case
may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision, as the case may be.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or
a foreign partnership one or more of the members of which is, for United
States Federal income tax purposes, a foreign corporation, a non-resident
alien individual or a nonresident alien fiduciary of a foreign estate or
trust.
"U.S. Depository" or "Depository" means, with respect to the
Securities of any series issuable or issued in whole or in part in the form
of one or more global Securities, the Person designated as U.S. Depository
by the Company pursuant to Section 301, which must be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and, if
so provided pursuant to Section 301 with respect to the Securities of any
series, any successor to such Person. If at any time there is more than
one such Person, "U.S. Depository" shall mean, with respect to any series
of Securities, the qualifying entity which has been appointed with respect
to the Securities of that series.
"Vice President" when used with respect to the Company shall mean any
Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of
the board of directors, managers or trustees of such corporation provided
that, for the purposes hereof, stock, which carries only the right to vote
conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
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 shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
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 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 matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate
or opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing. If, but only if, Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders
of Securities of such series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or
both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument
or instruments and so voting at any such meeting. Proof of execution of
any such instrument or of a writing appointing any such agent, or of the
holding by any Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section
1506.
Without limiting the generality of this Section 104, unless
otherwise established in or pursuant to a Board Resolution or set forth or
determined in an Officers' Certificate, or established in one or more
indentures supplemental hereto, pursuant to Section 301, a Holder,
including a U.S. Depository that is a Holder of a global Security, may
make, give or take, by a proxy, or proxies, duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided in this Indenture to be made, given or taken by Holders,
and a U.S. Depository that is a Holder of a global Security may provide its
proxy or proxies to the beneficial owners of interests in any such global
Security through such U.S. Depository's standing instructions and customary
practices.
The Company shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this
Indenture to be made, given or taken by Holders. If such a record date is
fixed, the Holders on such record date or their duly appointed proxy or
proxies, and only such Persons shall be entitled to make, give or take such
request, demand, authorization, direction, notice, consent, waiver or other
action, whether or not such Holders remain Holders after such record date.
No such request, demand, authorization, direction, notice, consent, waiver
or other action shall be valid or effective if made, given or taken more
than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as
the Trustee may determine; and the Trustee may in any instance require
further proof with respect to any of the matters referred to in this
Section.
(c) The ownership of Registered Securities and the principal
amount and serial numbers of Registered Securities held by any Person, and
the date of holding the same, shall be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume
that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no
longer Outstanding. The principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and
the date of holding the same may also be proved in any other manner which
the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option, by
Board Resolution, fix in advance a record date for the determination of
Holders of Registered Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of Registered Securities of record at the close of business on such
record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders of
Registered Securities on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent 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 Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
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 Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, postage prepaid, via certified mail,
return receipt requested, to the Company addressed to the attention of its
Treasurer 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. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security 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; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if the Securities of such series are then listed on any stock
exchange outside the United States, in an Authorized Newspaper in such city
as the Company shall advise the Trustee that such stock exchange so
requires, on a Business Day at least twice, the first such publication to
be not earlier than the earliest date and not later than the latest date
prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall
affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall
be made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither failure to
give notice by publication to Holders of Bearer Securities as provided
above, nor any defect in any notice so published, shall affect the
sufficiency of any notice mailed to Holders of Registered Securities as
provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. Language of Notices, etc.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in
the English language, except that, if the Company so elects, any published
notice may be in an official language of the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any
of the provisions of the Trust Indenture Act, such required provisions
shall control.
SECTION 109. 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 110. Successors and Assigns.
All covenants and agreements in this Indenture by the parties hereto
shall bind the successors and assigns of such parties, whether so expressed
or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities or
coupons 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 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder and the
Holders of Securities or coupons, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
controlled in accordance with the laws of the State of New York without
regard to the conflicts of laws provisions thereof.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or the
Securities or coupons other than a provision in the Securities which
specifically states that such provision shall apply in lieu of this
Section) payment of interest or any Additional Amounts or principal (and
premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day, except that if such
next succeeding Business Day is in the next succeeding calendar year, then
on the immediately preceding Business Day, at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity, and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series, related coupons, if any, and temporary
global Securities, if any, shall be in the form established by or pursuant
to a Board Resolution or in one or more indentures supplemental hereto,
shall have appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, the Securities of each series shall be
issuable in registered form without coupons. If so provided as
contemplated by Section 301, the Securities of a series also shall be
issuable in bearer form, with or without interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel
engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities, as
conclusively evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Dated: ..................... By
.................................................
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1207);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both;
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa; and
whether any Securities of the series are to be issuable initially in global
form and, if so, (i) whether beneficial owners of interests in any such
global Security may exchange such interests for Securities of such series
and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than in
the manner specified in Section 305 and (ii) the name of the depository or
the U.S. Depository, as the case may be, with respect to any global
Security;
(4) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of an Interest Payment Date
prior to the exchange of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(6) the date or dates on which the principal of such Securities
is payable;
(7) the rate or rates at which such Securities shall bear
interest, if any, or any method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on Registered Securities on
any Interest Payment Date, whether and under what circumstances Additional
Amounts on such securities shall be payable in respect of specified taxes,
assessments or other governmental charges withheld or deducted and, if so,
whether the Company has the option to redeem the affected Securities rather
than pay such Additional Amounts, and the basis upon which interest shall
be calculated if other than that of a 360 day year of twelve 30-day months;
(8) the place or places, if any, in addition to or other than
the Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest on or Additional Amounts, if any, payable in
respect of such Securities shall be payable;
(9) the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or
purchase such Securities pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which such Securities shall be redeemed or purchased, in whole or in
part, pursuant to such obligation, and any provisions for the remarketing
of such Securities;
(11) the denominations in which Registered Securities of the
series, if any, shall be issuable if other than denominations of $1,000 and
any integral multiple thereof, and the denominations in which Bearer
Securities of the series, if any, shall be issuable if other than the
denomination of $5,000;
(12) if other than the principal amount thereof, the portion of
the principal amount of such Securities which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies, in
which payment of the principal of (and premium, if any) and interest, if
any, on, and Additional Amounts in respect of such Securities shall be
payable;
(14) if the principal of (and premium, if any) or interest, if
any, on, and Additional Amounts in respect of, such Securities are to be
payable, at the election of the Company or a Holder thereof, in a coin or
currency, including composite currencies, 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;
(15) if the amount of payments of principal of (and premium, if
any) or interest, if any, on, and Additional Amounts in respect of, such
Securities may be determined with reference to an index, formula or other
method or based on a coin or currency other than that in which the
Securities are stated to be payable, the manner in which such amounts shall
be determined;
(16) the right, if any, of the Company to defer payments of
interest by extending the interest payment periods and specify the duration
of such extension, the Interest Payment Dates on which such interest shall
be payable and whether and under what circumstances additional interest on
amounts deferred shall be payable;
(17) the limitation, if any, on the Company's right to pay
dividends on, make distributions with respect to, or redeem, purchase or
acquire, or make a liquidation payment with respect to, any of its capital
stock or comparable equity interest;
(18) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and terms of such certificates, documents or conditions; and
(19) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and
Stated Maturity, the date from which interest, if any, shall accrue and
except as may otherwise be provided in or pursuant to such Board Resolution
and set forth in such Officers' Certificate or in any such indenture
supplemental hereto. All Securities of any one series need not be issued
at the same time, and unless otherwise provided, a series may be reopened
for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of such
series.
SECTION 302. Denominations.
Unless other denominations and amounts may from time to time be fixed
by or pursuant to a Board Resolution, the Registered Securities of each
series, if any, shall be issuable in registered form without coupons in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of each series, if any, shall be issuable in the denomination of
$5,000, or in such other denominations and amounts as may from time to time
be fixed by or pursuant to a Board Resolution.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, President, Vice President serving as Chief Financial
Officer or its Treasurer and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Treasurer or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together
with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with the Board Resolution and
Officers' Certificate or supplemental indenture with respect to such
Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order and subject to the provisions hereof
shall authenticate and make available for delivery such Securities. In
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) the form and terms of such Securities and coupons, if any,
have been established in conformity with the provisions of this Indenture;
(b) that all conditions precedent to the authentication and
delivery of such Securities, together with the coupons, if any,
appertaining thereto, have been complied with and that such Securities and
coupons, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors' rights
and to general equity principles,
(c) that all laws and requirements in respect of the execution
and delivery by the Company of such Securities and coupons, if any, have
been complied with; and
(d) as to such other matters as the Trustee may reasonably
request.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee or if the Trustee being advised by counsel determines that such
action may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any temporary Bearer Security in
global form shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon appertaining thereto 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 in Section 202 or 612 executed by or
on behalf of the Trustee by the manual signature of one of its authorized
signers, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 306
or 307, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached
and cancelled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute and deliver to the Trustee, and upon Company Order the
Trustee shall authenticate and make available for delivery in the manner
provided in Section 303, temporary Securities of such series which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of Bearer
Securities of any series, such temporary Securities may be in global form,
representing all of the Outstanding Bearer Securities of such series.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After
the preparation of definitive Securities, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series
containing identical terms and provisions upon surrender of the temporary
Securities of such series at an office or agency of the Company maintained
for such purpose pursuant to Section 1002, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of
any series (accompanied by any unmatured coupons appertaining thereto) the
Company shall execute and the Trustee shall authenticate and make available
for delivery in exchange therefor a like principal amount of definitive
Securities of authorized denominations of the same series containing
identical terms and provisions; provided, however, that no definitive
Bearer Security, except as provided pursuant to Section 301, shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be delivered in exchange
for a temporary Bearer Security only in compliance with the conditions set
forth therein. Unless otherwise specified as contemplated by Section 301
with respect to a temporary global Security, until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept at an office or agency of the Company
maintained pursuant to Section 1002, 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 the Registered Securities of each series and of transfers
of the Registered Securities of each series. Such office or agency shall
be the "Security Registrar" for the Registered Securities, if any, of each
series of Securities. In the event that the Trustee shall not be the
Security Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security
of any series at any office or agency of the Company maintained for that
series pursuant to Section 1002, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations, of a like aggregate
principal amount bearing a number not contemporaneously outstanding and
containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a
like aggregate principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, the Registered
Securities which the holder making the exchange is entitled to receive.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series containing identical
terms and provisions, of any authorized denominations and aggregate
principal amount, upon surrender of the Bearer Securities to be exchanged
at any such office or agency, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or
matured coupon or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the
Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished
to them such security or indemnity as they may require to save each of them
and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of
which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as
otherwise provided in Section 1002, interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any
such office or agency in exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency
on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on
the related date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment
Date or proposed date of payment, as the case may be (or, if such coupon is
so surrendered with such Bearer Security, such coupon shall be returned to
the person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
If expressly provided with respect to the Securities of any series, at
the option of the Holder, Registered Securities of such series may be
exchanged for Bearer Securities upon such terms and conditions as may be
provided with respect to such series.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any global Security shall be exchangeable only
if (i) the Securities Depository is at any time unwilling or unable to
continue as Securities Depository and a successor depository is not
appointed by the Company within 60 days, (ii) the Company executes and
delivers to the Trustee a Company Order to the effect that such global
Security shall be so exchangeable, or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to
exchange such interests for Securities of such series and of like tenor and
principal amount of any authorized form and denomination, as specified as
contemplated by Section 301, then without unnecessary delay but in any
event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities
of that series in aggregate principal amount equal to the principal amount
of such global Security, executed by the Company. On or after the earliest
date on which such interests may be so exchanged, such global Securities
shall be surrendered from time to time by the U.S. Depository or such other
depository as shall be specified in the Company Order with respect thereto,
and in accordance with instructions given to the Trustee and the U.S.
Depository or such depository, as the case may be (which instructions shall
be in writing but need not comply with Section 102 or be accompanied by an
Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or in part, for definitive Securities of the same
series without charge. The Trustee shall authenticate and make available
for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged which (unless the Securities of the
series are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the
global Security shall be issuable only in the form in which the Securities
are issuable, as specified as contemplated by Section 301) shall be in the
form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of that
series to be redeemed and ending on the relevant Redemption Date; and
provided, further, that (unless otherwise specified as contemplated by
Section 301) no Bearer Security delivered in exchange for a portion of a
global Security shall be mailed or otherwise delivered to any location in
the United States. Promptly following any such exchange in part, such
global Security shall be returned by the Trustee to such depository or the
U.S. Depository, as the case may be, or such other depository or U.S.
Depository referred to above in accordance with the instructions of the
Company referred to above. If a Registered Security is issued in exchange
for any portion of a global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of interest or Defaulted Interest, as the case may be, interest
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment,
as the case may be, only to the Person to whom interest in respect of such
portion of such global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by the
Company or the Security Registrar for such series of Security presented) be
duly endorsed, or be accompanied by a written instrument of transfer in
form satisfactory to the Company and such Security Registrar duly executed,
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may
be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1206 not
involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Securities 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 that series selected for redemption under
Section 1203 and ending at the close of business on the day of such
mailing, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except, in the
case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series, provided that such Registered Security
shall be immediately surrendered for redemption with written instruction
for payment consistent with the provisions of this Indenture.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and make available for delivery in
exchange therefor a new Security of the same series containing identical
terms and of like principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons,
if any, appertaining to the surrendered Securities.
If there be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen
Security or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not destroyed, lost
or stolen), a new Security of the same series containing identical terms
and of like principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or
coupon; provided, however, that payment of principal of (and premium, if
any) and any interest on Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated
by Section 301, any interest on Bearer Securities shall be payable only
upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security 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 and its counsel)
connected therewith.
Every new Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security and
its coupons, if any, or the destroyed, lost or stolen coupon shall be at
any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall,
if so provided in such Security, 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. In case a Bearer
Security of any series is surrendered in exchange for a Registered Security
of such series after the close of business (at an office of agency in a
Place of Payment for such series) on any Regular Record Date and before the
opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without
the coupon relating to such Interest Payment Date and interest will not be
payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the provisions of
this Indenture.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date for such Registered Security (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities affected
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each such Registered 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 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of such Registered Securities at his address as it appears in the
Security Register not less than 10 days prior to such Special Record Date.
The Trustee may in the name and at the expense of the Company, cause a
similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of 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 Registered Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
In case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not
be payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable
only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
(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 payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities of any
series that bear interest may be paid by mailing a check to the address of
the person entitled thereto as such address shall appear in the Security
Register.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue interest, which were
carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on and Additional Amounts with respect to,
such Registered Security and for all other purposes whatsoever, whether or
not such Registered 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.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as
the absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall
be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and
Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities
and coupons held by the Trustee shall be returned by the Trustee to the
Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, or as set forth in any supplemental indenture,
interest on the Securities of each series shall be computed on the basis of
a 360 day year of twelve 30-day months or, for any period shorter than a
full three months, on the basis of the actual number of days elapsed in
such period.
SECTION 311. Cusip Numbers
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of
such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of such numbers. The
Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order this Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly
provided for and any right to receive Additional Amounts, as provided in
Section 1004), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
and all coupons appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and coupons which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities called
for redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 1206, and (iv) Securities
and coupons 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 for cancellation; or
(B) all such Securities and, in the case of (i) or (ii)
below, any such coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
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 and coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, and any
Additional Amounts with respect thereto, to the date of such deposit (in
the case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so
with respect to Securities of all series as to which it is Trustee and if
the other conditions thereto are met. In the event there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be
conditioned upon receipt of such instrument from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
Clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the
Securities, the coupons 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 any interest and Additional Amounts
for whose payment such money has been deposited with the Trustee; but such
money need not be segregated from other funds except to the extent required
by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law pursuant to any judgment, decree or order
of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series when
such interest or Additional Amounts becomes due and payable, and
continuance of such default for a period of 30 days; provided, however,
that a valid extension of an interest payment period by the Company in
accordance with the terms of the Securities of such series shall not
constitute a default in the payment of interest for this purpose; or
(2) default in the payment of the principal of (and premium, if
any, on) any Security of that series when it becomes due and payable at
Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has been expressly included
in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or
for any substantial part of its property, or ordering the winding-up or
liquidation of its affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(6) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of
or taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or similar official) of the Company or for any
substantial part of its property, or shall make any general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due or shall take any corporate action in furtherance of any of the
foregoing; or
(7) a default occurs under any bond, mortgage, indenture
(including this Indenture) or instrument under which there may be issued,
or by which there may be secured or evidenced, any indebtedness for money
borrowed of the Company or any Subsidiary, whether such indebtedness now
exists or shall hereafter be created, which default (a) is caused by a
failure to pay principal on such indebtedness prior to the expiration of
the grace period provided in such indebtedness (a "Payment Default") or (b)
results in the acceleration of such indebtedness prior to its express
maturity, and in each case, the principal amount of any such indebtedness
together with the principal amount of any other such indebtedness under
which there has been a Payment Default or the maturity of which has been so
accelerated, aggregates $25 million or more, without such acceleration
having been rescinded, stayed or annulled, or such indebtedness having been
discharged or, in the case of indebtedness contested in good faith by the
Company, a bond, letter of credit, escrow deposit or other cash equivalent
in an amount sufficient to discharge such indebtedness having been set
aside by the Company, within a period of 10 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 a written notice specifying such
default and requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such indebtedness to be discharged and
stating that such notice is a "Notice of Default" hereunder; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal of all the
Securities of that series, or such lesser amount as may be provided for in
the Securities of that series, to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by the
Holders), and upon any such declaration such principal or such lesser
amount shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne
by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, 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
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which has become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 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 instalment of interest
on or any Additional Amounts payable in respect of any Security when such
interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at its Maturity.
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities and coupons, the whole amount then due and
payable on such Securities and coupons for principal (and premium, if any)
and interest and Additional Amounts, if any, with interest upon the overdue
principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon overdue installments of
interest or any Additional Amounts, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If 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 such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such
series and any related coupons 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
proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of that series, of
principal (and premium, if any) and interest and any Additional Amounts
owing and unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents or counsel)
and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities and coupons, 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 Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons 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 or judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities and coupons in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (and
premium, if any), interest or any Additional Amounts, upon presentation of
the Securities or coupons, or both, as the case may be, 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 and its
agents and counsel under Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and interest
and any Additional Amounts payable 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 aggregate amounts due and payable on
such Securities and coupons for principal (and premium, if any), interest
and Additional Amounts, respectively;
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holders or Holders of any other series, or to obtain or to
seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Sections 305 and 307) interest on and any Additional
Amounts in respect of such Security or payment of such coupon on the
respective Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) 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 Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and the Holders of Securities and
coupons 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 Holders shall
continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in
the last paragraph of Section 306, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders of Securities or coupons 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 of 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
or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders of
Securities or coupons may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
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) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of
other Holders of Securities of such series.
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 and any related coupons waive any past
default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of (and premium, if any) or
interest on or Additional Amounts payable in respect of any Security 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 affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
or coupon by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit, other than the Trustee, of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees
and expenses, against any party litigant in such suit, including the
Trustee, having due regard to the merits and good faith of the claims or
defenses made by such party litigant, but the provisions of this Section
shall not apply to any suit instituted by the Company, the Trustee or by
any Holder, or group of Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of any series, or to any
suit instituted by any Holder of any Security or coupon for the enforcement
of the payment of the principal of (and premium, if any) or interest on or
any Additional Amounts in respect of any Security or the payment of any
coupon on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date)
or interest on any overdue principal of any Security.
SECTION 515. Waiver of Stay, Extension or Usury 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, extension or usury law
wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties, and only
such duties, as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee or any predecessor Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions (whether in their original or facsimile form) 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 provisions 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 (but need not confirm or
investigate the accuracy of any facts or mathematical calculations stated
therein).
(b) In case an Event of Default has occurred and is continuing,
the Trustee shall exercise 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 wilful 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 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 the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series entitled to receive reports
pursuant to Section 703(c), 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 (and premium, if any) or interest on, or any Additional
Amounts with respect to, any Security of such series or in the payment of
any sinking fund instalment 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
Holders of Securities and coupons 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 Holders
shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of Default
with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, or other paper or
document reasonably 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
(other than delivery of any Security to the Trustee for authentication and
delivery pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors shall 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, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture 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 at the sole cost of the Issuer;
(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
Trustee's certificate of authentication, and in any coupons shall be taken
as the statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or
of the Securities or coupons. The Trustee or any Authenticating Agent
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 Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 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 such compensation as
the parties shall agree to in writing from time to time 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 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,
disbursements or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee, any predecessor Trustee
and their respective agents for, and to hold them harmless against, any and
all loss, liability, claim, damage or expense (including taxes other than
taxes based on the income of the Trustee) incurred without negligence, bad
faith or intentional misconduct on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of their 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 of
any series upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (or
premium, if any) or interest on Securities.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a corporation
(or other person permitted to so act) by the Commission permitted by the
Trust Indenture Act to act as trustee under an indenture qualified under
the Trust Indenture Act and that has a combined capital and surplus
(computed in accordance with Section 310(a)(2) of the Trust Indenture Act)
of at least $50,000,000. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section or Section
310(a)(5) of the Trust Indenture Act, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
SECTION 609. 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
610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 610 shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
at the expense of the Company petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company. If the instrument of acceptance by a successor
Trustee required by Section 610 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of removal, the
resigning Trustee may at the expense of the Company petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to such series.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
608 and shall fail to resign after written request therefor by the Company
or by any such Holder of a Security, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder of a Security who has been a bona fide Holder of a Security of any
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities of such series and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of
Section 610. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 610,
become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner required by Section 610,
any Holder of a Security who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Registered Securities, if any, of such
series as their names and addresses appear in the Security Register and, if
Securities of such series are issued as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of
Payment located outside the United States. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series as to which the retiring Trustee
is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that no Trustee shall
be responsible for any notice given to, or received by, or any act or
failure to act on the part of any other Trustee hereunder, and upon the
execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations
vested in the Trustee under this Indenture other than as hereinafter
expressly set forth, and each such successor Trustee without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee, to the extent contemplated by such supplemental indenture, the
property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting
in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. 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 612. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue or 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
Authenticating Agent, having a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or
State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and 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 may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall (i) mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the
series with respect to which such Authenticating Agent will serve, as their
names and addresses appear in the Security Register, and (ii) if Securities
of the series are issued as Bearer Securities, publish notice of such
appointment at least once in an Authorized Newspaper in the place where
such successor Authenticating Agent has its principal office if such office
is located outside the United States. 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 each Authenticating Agent 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.
The provisions of Sections 308, 604 and 605 shall be applicable to
each Authenticating Agent.
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 BANK OF NEW YORK,
as Trustee
Dated: ......................
By ...............................
As Authenticating Agent
By ...............................
Authorized Signatory
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested in
writing (which writing need not comply with Section 102) by the Company,
shall appoint in accordance with this Section 612 an Authenticating Agent
having an office in a Place of Payment designated by the Company with
respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than fifteen days after the Regular
Record Date for interest for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders of Registered Securities of such series as of such Regular
Record Date, or if there is no Regular Record Date for interest for such
series of Securities, semi-annually, upon such dates as are set forth in
the Board Resolution or indenture supplemental hereto authorizing such
series, 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, however, that, so long as the Trustee is the Security Registrar,
no such list shall be required to be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held
accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with Section 312
of the Trust Indenture Act, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after __________ of each year commencing with
the first __________ following the first issuance of Securities pursuant to
Section 301, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture
Act, a brief report dated as of such __________ with respect to any of the
events specified in said Section 313(a) which may have occurred since the
later of the immediately preceding __________ and the date of this
Indenture.
(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act. The Company will notify the Trustee when any series
of Securities are listed on any securities exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 30 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 shall file with 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 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 and shall
file a copy thereof with the Trustee within 30 days after such
supplementary and periodic information, documents and reports would have
been required to be filed with the Commission;
(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 within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 703(c) with
respect to reports pursuant to Section 703(a), 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.
(4) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions.
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other
corporation, provided that in any such case, (i) either the Company shall
be the continuing corporation, or the successor corporation shall be a
corporation organized and existing under the laws of the United States of
America or a State thereof and such successor corporation shall expressly
assume the due and punctual payment of the principal of (and premium, if
any), any interest on, and any Additional Amounts payable pursuant to
Section 1004 with respect to, all the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed by the Company by
supplemental indenture satisfactory to the Trustee, executed and delivered
to a Responsible Officer of the Trustee by such corporation, and (ii) the
Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale, lease or
conveyance, be in default in the performance of any such covenant or
condition.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance
and upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part,
and the predecessor corporation, except in the event of a lease, shall be
relieved of any further obligation under this Indenture and the Securities
and coupons. Such successor corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, any or
all of the Securities and coupons issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee;
and, upon the order of such successor corporation, instead of the Company,
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
and coupons which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any
Securities or coupons which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities and coupons so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities and coupons
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities and coupons had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in
the Securities and coupons thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, lease or conveyance,
and any such assumption, complies with the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, 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, for the benefit of
the Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) on Registered Securities or of principal (or premium, if
any) or any interest on Bearer Securities, to permit Registered Securities
to be exchanged for Bearer Securities or to permit the issuance of
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(4) to establish the form of terms of Securities of any series
as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610 (b); or
(6) 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 which shall not adversely affect the
interest of the Holders of Securities of any series or any related coupons
in any material respect; or
(7) to add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any Additional Amounts payable
in respect thereof, or any premium payable upon the redemption thereof, or
change the obligation of the Company to pay Additional Amounts pursuant to
Section 1004 (except as contemplated by Section 801(i) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, any Security or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or voting,
or
(3) modify any of the provisions of this Section, or Section
513, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders of Securities 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 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 and of any coupons appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If
the Company shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the
principal of (and premium, if any), interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the
terms of such series of Securities, any coupons appertaining thereto and
this Indenture. Any interest due on and any Additional Amounts payable in
respect of Bearer Securities on or before Maturity, other than Additional
Amounts, if any, payable as provided in Section 1004 in respect of
principal of (or premium, if any, on) such a Security, shall be payable
only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not
Bearer Securities, except as otherwise provided below, unless such Place of
Payment is located outside the United States) may be presented or
surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain, subject to any laws or regulations
applicable thereto, an office or agency in a Place of Payment for such
series which is located outside the United States where Securities of such
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of such
series pursuant to Section 1004); provided, however, that if the Securities
of such series are listed on The Stock Exchange of the United Kingdom and
the Republic of Ireland or the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent in London, Luxembourg or
any other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such exchange.
The Company will give prompt written notice to a Responsible Officer of the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented
and surrendered for payment (including payment of any Additional Amounts
payable on Bearer Securities of that series pursuant to Section 1004) at
the place specified for the purpose pursuant to Section 301, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment
of principal, premium or interest on Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to
any address in the United States or by transfer to an account maintained
with a bank located in the United States; provided, however, payment of
principal of and any premium and interest in U.S. dollars (including
Additional Amounts payable in respect thereof) on any Bearer Security may
be made at the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York if (but only if) payment of the full amount
of such principal, premium, interest or Additional Amounts at all offices
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise set forth in
a Board Resolution or indenture supplemental hereto with respect to a
series of Securities, the Company hereby designates as the Place of Payment
for each series of Securities the Borough of Manhattan, The City of New
York, and initially appoints the Trustee at its Corporate Trust Office as
the Company's office or agency for each of such purposes in such City.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any), or interest on, any of the
Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal (and
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 so 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 that
series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument
in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities of that series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that 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 or of any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Except as otherwise provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, 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 or any coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in each
Place of Payment or to be mailed to Holders of Registered Securities, or
both, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of
such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of any series
or any coupon appertaining thereto Additional Amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of (or premium, if any) or interest on, or in respect of,
any Security of any series or any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with
respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment
of principal (and premium, if any) is made), and at least 10 days prior to
each date of payment of principal (and premium, if any) or interest if
there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company will furnish the Trustee
and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal (and
premium, if any) or interest on the Securities of that series shall be made
to Holders of Securities of that series or the related coupons who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
Series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the Additional Amounts
required by this Section. The Company covenants to indemnify the Trustee
and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence, bad faith or
intentional misconduct on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section.
SECTION 1005. Statement as to Compliance
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement, which need not comply with
Section 102, signed by the Chairman of the Board, the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Controller or
an Assistant Controller of the Company, stating, as to each signer thereof,
that
(a) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(b) to the best of his knowledge, based on such review, (i) the
Company has fulfilled all of its obligations under this Indenture
throughout 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 (ii) no event has occurred and is continuing
which is, or after notice or lapse of time or both would become, an Event
of Default, or, if such an event has occurred and is continuing, specifying
each such event known to him and the nature and status thereof.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1005, inclusive,
with respect to the Securities of any series if before the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or
affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
NEGATIVE COVENANTS
SECTION 1101. Limitations on Mortgages. Nothing in this Indenture or
in any Securities shall in any way restrict or prevent the Company or any
Subsidiary from incurring any indebtedness; provided that the Company
covenants and agrees that neither it nor any Subsidiary will create or
assume any Mortgages upon any receivable or other asset or any interest it
may have therein or of or upon any stock or indebtedness of any Subsidiary,
whether now owned or hereafter acquired (all property and assets, tangible
or intangible, real, personal or mixed, of whatsoever kind or description,
being referred to herein as "property"), without effectively providing that
any Securities then Outstanding and thereafter created (together with, if
the Company so determines, any other indebtedness or obligation then
existing and any other indebtedness or obligation thereafter created
ranking equally with such series of Securities) shall be secured equally
and ratably with (or prior to) such indebtedness or obligation as long as
such indebtedness or obligation shall be so secured, except that the
foregoing provision shall not apply to:
(a) Any Mortgage created by the Company or a Subsidiary to secure all
or part of the purchase price of any property (or to refund or refinance
all or part of such purchase price within 12 months of the acquisition of
such property) or to secure a loan made to enable the Company or a
Subsidiary to acquire the property described in such Mortgage; provided,
however, that (i) such Mortgage shall not encumber any other Property of
the Company or a Subsidiary (other than property constituting substitutions
or replacements for, or accessions to, property which is encumbered
pursuant to after-acquired property provisions of the agreements in
accordance with which such Mortgages were granted) and (ii) the principal
amount of the indebtedness secured by any such Mortgage, together with all
other indebtedness secured by a Mortgage on such property, shall not exceed
the purchase price of such property;
(b) Any Mortgage existing on any property at the time of the
acquisition thereof by the Company or a Subsidiary whether or not assumed
by the Company or a Subsidiary, any Mortgage on any property acquired or
constructed by the Company or a Subsidiary and created not later than 12
months after (i) such acquisition or completion of such construction or
(ii) commencement of full operation of such property, whichever is later,
and any Mortgage on any property with respect to which the Company or a
Subsidiary has made additions, substantial repairs, alterations or
improvements and created not later than 12 months after completion of such
additions, repairs, alterations or improvements; provided, however, that
(A) the principal amount of the indebtedness secured by such Mortgage,
together with all other indebtedness secured by a Mortgage on such
property, shall not exceed the purchase price of the property acquired, the
cost of the property constructed and/or the costs of such additions,
repairs, alterations or improvements and (B) such Mortgage does not extend
to or cover any property other than such property acquired, constructed,
repaired, altered and/or improved (other than property constituting
substitutions or replacements for, or accessions to, property which is
encumbered pursuant to after-acquired property provisions of the agreements
in accordance with which such Mortgages were granted);
(c) Any Mortgage created or assumed by the Company or a Subsidiary on
any contract for the sale of any product or service or any rights
thereunder or any proceeds therefrom, including accounts and other
receivables, related to the operation or use of any property acquired or
constructed by the Company or a Subsidiary and created not later than 12
months after (i) such acquisition or completion of such construction or
(ii) commencement of full operation of such property, whichever is later;
(d) Any Mortgage existing on any property of an entity at the time it
is acquired by the Company or any of its Subsidiaries, whether through
merger, consolidation, purchase of assets or otherwise; provided, however,
that such Mortgage does not extend to any other property of the Company or
any of its Subsidiaries (other than property constituting substitutions or
replacements for, or accessions to, property which is encumbered pursuant
to after-acquired property provisions of the agreements in accordance with
which such Mortgages were granted);
(e) Mechanic's or materialmen's liens or any lien or charge arising
by reason of pledges or deposits to secure payment of workmen's
compensation or other insurance, good faith deposits in connection with
tenders or leases of real estate, bids or contracts, deposits to secure
public or statutory obligations, deposits to secure or in lieu of surety,
stay or appeal bonds and deposits as security for the payment of taxes or
assessments or other similar charges, and Mortgages arising in connection
with statutory or contractual set-off provisions granted or arising in the
ordinary course of business;
(f) Any Mortgage arising by reason of deposits with or the giving of
any form of security to any governmental agency or any body created or
approved by law or governmental regulation for any purpose at any time as
required by law or governmental regulation as a condition to the
transaction of any business or the exercise of any privilege or license, or
to enable the Company or a Subsidiary to maintain self-insurance or to
participate in any fund for liability on any insurance risks or in
connection with workmen's compensation, unemployment insurance, old age
pensions or other social security or to share in the privileges or benefits
required for companies participating in such arrangements;
(g) The right reserved to, or vested in, any municipality or
governmental or other public authority or railroad by the terms of any
right, power, franchise, grant, license, permit, or by any provision of
law, to terminate or to require annual or other periodic payments as a
condition to the continuance of such right, power, franchise, grant,
license or permit;
(h) Mortgages for taxes, assessments and governmental charges which
are not at the time delinquent or which are being contested in good faith
by appropriate proceedings by the Company or a Subsidiary;
(i) Mortgages due to zoning, planning and environmental laws and
ordinances and governmental regulations; minor defects or irregularities in
or encumbrances on the titles to properties which in the aggregate do not
materially impair the use of the property of the Company and its
Subsidiaries, taken as a whole, for the purposes for which it is held in
the operation of the business of the Company and its Subsidiaries;
easements, exceptions or reservations in any property of the Company or a
Subsidiary granted or reserved for the purpose of pipelines, roads,
telecommunication equipment and cable, streets, alleys, highways, railroad
purposes, the removal of oil, gas, coal or other minerals or timber, and
other like purposes, or for the joint or common use of real property,
facilities and equipment, which do not materially impair the use of the
property of the Company and its Subsidiaries, taken as a whole, for the
purposes for which it is held in the operation of the business of the
Company and its Subsidiaries, or materially detract from the value of the
property subject thereto;
(j) Mortgages securing any obligation incurred in connection with the
rendering of a final judgment or award the execution of which has been
stayed or which has been appealed and secured, if necessary, by the filing
of an appeal bond and the claims secured thereby are being contested in
good faith by appropriate proceedings;
(k) Mortgages incidental to the conduct of the business of the
Company or its Subsidiaries or the ownership of the property of the Company
and its Subsidiaries (including warehousemen's liens, attorneys' liens,
operator's liens, brokers' liens, landlords' liens and liens granted in
favor of partnerships or joint ventures or the participants therein) which
were not incurred in connection with the borrowing of money (or as full or
partial payment for property) or the obtaining of advances or credit (other
than trade credit, including margin accounts with brokerage firms), and
which do not materially interfere with the conduct of the business of the
Company and of its Subsidiaries taken as a whole;
(l) Mortgages on property of any Subsidiary to secure obligations of
such Subsidiary to the Company or to another Subsidiary; provided, however,
that the obligations secured by such Mortgages may not be assigned, sold or
otherwise transferred to a Person other than the Company or a Subsidiary
unless such Mortgage would otherwise be permitted to be granted to such
Person under another exception in this Section;
(m) Mortgages on current assets of the Company or any Subsidiary
created to secure indebtedness and letter of credit reimbursement
obligations incurred in connection with the extension of working capital
financing;
(n) Any Mortgage on any property of the Company or any Subsidiary
existing at the date of this Indenture (or property constituting
substitutions or replacements for, or accessions to, property which is
encumbered pursuant to after-acquired property provisions of the agreements
in accordance with which such Mortgages were granted);
(o) Mortgages (which may include customary after-acquired property
provisions relating to substitutions or replacements for, or accessions to,
the property encumbered thereby) incurred in connection with the borrowing
of funds if, within 120 days following the date of such borrowing, such
funds are utilized to repay indebtedness in the same (or greater) principal
amount secured by other Mortgages (other than Mortgages referred to in
clause (m) above) on property of the Company or any Subsidiary having a
fair market value (as determined by the chief financial officer of the
Company) at least equal to the fair market value of the property which
secures the new Mortgage;
(p) Mortgages incurred within 90 days (or any longer period, not in
excess of one year, as permitted by law) after acquisition of the property
subject to such Mortgage arising solely in connection with the transfer of
tax benefits in accordance with any Code provisions similar to former
Section 168(f) (8) of the Code;
(q) Mortgages on cash, cash equivalents, options or futures
positions and other account holdings securing derivative obligations or
otherwise incurred in connection with margin accounts with brokerage or
commodities firms; provided that the aggregate amount of assets subject to
such Mortgages shall at no time exceed $60,000,000;
(r) Any renewal, refunding or extension of maturity, in whole or in
part, of any Mortgage created or assumed in accordance with the provisions
of subdivision (a),(b),(c),(d),(l),(m),(n),(o) or (p) above; provided,
however, that the principal amount of the indebtedness secured by such
renewal Mortgage, refunding Mortgage or extended Mortgage shall not exceed
the principal amount of the indebtedness secured by the Mortgage to be
renewed, refunded or extended outstanding at the time of such renewal,
refunding or extension; provided, further, that in the case of any
revolving credit or similar facility which allows the Company or any
Subsidiary to borrow any money thereunder immediately prior to the time of
such renewal, refunding or extension or maturity, the principal amount of
indebtedness secured by the renewal Mortgage, refunding Mortgage or
extended Mortgage shall not exceed the maximum stated amount which could be
borrowed under such facility immediately prior to such renewal, refunding
or extension (without regard to any borrowing base, collateral value, debt
to equity, debt service or other provisions then purporting to limit any
borrowings thereunder); and in any case the lien of such renewal Mortgage,
refunding Mortgage or extended Mortgage shall be limited to the same
property (or property constituting substitutions or replacements for, or
accessions to, property which is encumbered pursuant to after-acquired
property provisions of the agreements in accordance with which such
Mortgages were granted) that secured the Mortgage so renewed, refunded or
extended; and
(s) Mortgages not otherwise permitted by any of the foregoing
provisions securing debt in an aggregate principal or face amount at any
date not to exceed 10% of the Consolidated Net Tangible Assets of the
Company and its Subsidiaries.
SECTION 1102. Limitations on Sale and Leaseback Transactions. The
Company covenants and agrees that neither it nor any Subsidiary will enter
into any arrangement with any Person (other than the Company or a
Subsidiary), or to which any such Person is a party, providing for the
leasing to the Company or a Subsidiary for a period of more than three
years of Principal Property which has been or is to be sold or transferred
by the Company or such Subsidiary to such Person or to any other Person
(other than the Company or a Subsidiary), and with respect to which the
funds have been or are to be advanced by such Person on the security of the
leased Principal Property (in this Article Eleven call "Sale and Leaseback
Transactions") unless either:
(i) the Company or such Subsidiary would be entitled, pursuant
to Section 1101, to incur indebtedness secured by a Mortgage on the
Principal Property to be leased, without equally and ratably securing the
Securities, or
(ii) the Company during or immediately after the expiration of
120 days after the effective date of such Sale and Leaseback Transaction
(whether made by the Company or a Subsidiary) applies an amount equal to
the value of such Sale and Leaseback Transaction (A) to the purchase of
other property that will constitute Principal Property or (B) to the
voluntary retirement of Funded Debt; provided, however, that the amount to
be applied to the retirement of Funded Debt shall be reduced by (A) the
principal amount of Securities delivered, within 120 days after the
effective date of such Sale and Leaseback Transaction, to the Trustee for
retirement and cancellation and (B) the principal amount of other Funded
Debt voluntarily retired by the Company within such 120-day period,
excluding retirements of Securities and other Funded Debt pursuant to
mandatory sinking fund or prepayment provisions or by payment at maturity.
For purposes of this Section 1102, the term "value" shall mean, with
respect to a Sale and Leaseback Transaction, as of any particular time, the
amount equal to the greater of (1) the net proceeds of the sale or transfer
of the property leased pursuant to such Sale and Leaseback Transaction or
(2) the fair value in the opinion of the chief financial officer, Vice
President, Finance or Treasurer of the Company of such property at the time
of entering into such Sale and Leaseback Transaction, in either case
divided first by the number of full years of the term of the lease and then
multiplied by the number of full years of such term remaining at the time
of determination, without regard to any renewal or extension options
contained in the lease. For purposes of this Section 1102, the term
"Principal Property" shall mean any refinery or refinery- related asset,
distribution facility or other real property of the Company or any of its
Subsidiaries which has a net book value exceeding 2.5% of Consolidated Net
Tangible Assets, but not including (1) any property which in the opinion of
the Company is not material to the total business conducted by the Company
as an entirety or (2) any portion of a particular property which is
similarly found not to be material to the use or operation of such
property.
Notwithstanding this Section 1102, the Company and any Subsidiary may
enter into Sale and Leaseback Transactions in an aggregate principal amount
at any date not to exceed, together with the aggregate outstanding
principal or face amount of all indebtedness of the Company and its
subsidiaries secured by Mortgages permitted as a result of clause (s) of
Section 1101, 10% of the Consolidated Net Tangible Assets of the Company
and its subsidiaries.
ARTICLE TWELVE
REDEMPTION OF SECURITIES
SECTION 1201. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and this Article.
SECTION 1202. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Company Order. In case of any redemption at the election of
the Company of less than all of the Securities of any series with the same
issue date, interest rate and Stated Maturity, 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.
SECTION 1203. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Securities of such
series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal amount of Registered Securities of
such series; provided, however, that no such partial redemption shall
reduce the portion of the principal amount of a Registered Security of such
series not redeemed to less than the minimum denomination for a Security of
that series established pursuant to Section 302.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal of such Securities which has been or
is to be redeemed.
SECTION 1204. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to
the Holders of Securities to be redeemed. Failure to give notice by
mailing in the manner herein provided to the Holder of any Registered
Securities designated for redemption as a whole or in part, or any defect
in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not such Holder receives the notice.
All notices of redemption shall include the Cusip Number, if any, and
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 principal amount) of the particular Securities to be redeemed,
(4) in case any Registered Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the Holder of
such Security will receive, without charge, a new Registered Security or
Registered Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed, and, if applicable,
that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the
case.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1205. Deposit of Redemption Price.
On or 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, and (except if
the Redemption Date shall be an Interest Payment Date) accrued interest on
and any Additional Amounts with respect thereto, all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 1206. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless
the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the
coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said
notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest (and any Additional
Amounts) to the Redemption Date; provided, however, that installments of
interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of
coupons for such interest (at an office or agency located outside the
United States except as otherwise provided in Section 1002), and provided,
further, that installments of interest on Registered Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an
amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or
any Paying Agent any such missing coupon in respect of which a deduction
shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that
interest (and any Additional Amounts) represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office
or agency located outside of the United States except as otherwise provided
in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 1207. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that
purpose pursuant to Section 1002 (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 Registered Security or
Securities of the same series, containing identical terms and provisions,
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. If a Security in global form is
so surrendered, the Company shall execute, and the Trustee shall
authenticate and deliver to the U.S. Depository or other depository for
such Security in global form as shall be specified in the Company Order
with respect thereto to the Trustee, without service charge, a new Security
in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 1301. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted
or required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of such series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of
Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 1302. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1302. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series to be made
pursuant to the terms of such Securities as provided for by the terms of
such series, (1) deliver Outstanding Securities of such series (other than
any of such Securities previously called for redemption or any of such
Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto, and (2) apply as a credit
Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such series of Securities or
through the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, provided that such series of
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section 1302, the
principal amount of Securities of such series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by
the Company to the Trustee of Securities of that series purchased by the
Company having an unpaid principal amount equal to the cash payment
requested to be released to the Company.
SECTION 1303. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by delivering and
crediting of Securities of that series pursuant to Section 1302, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities
to be so credited and not theretofore delivered. If such Officers'
Certificate shall specify an optional amount to be added in cash to the
next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days
before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1203 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner
provided in Section 1204. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1206 and 1207.
ARTICLE FOURTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1401. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any
principal amount of Securities pursuant to such option of the Holder to
require repayment of Securities before their Stated Maturity, for purposes
of Section 309, shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and until the
Company, at its option, shall deliver or surrender the same to the Trustee
with a directive that such Securities be cancelled. Notwithstanding
anything to the contrary contained in this Article Fourteen, in connection
with any repayment of Securities, the Company may arrange for the purchase
of any Securities by an agreement with one or more investment bankers or
other purchasers to purchase such Securities by paying to the Holders of
such Securities on or before the close of business on the repayment date an
amount not less than the repayment price payable by the Company on
repayment of such Securities, and the obligation of the Company to pay the
repayment price of such Securities shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York, or as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 106, not
less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have the first publication of the notice of such meeting within
21 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of
Securities of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver
which this Indenture expressly provides may be given by the Holders of a
specified percentage in aggregate principal amount of the Outstanding
Securities of a series that is less or greater than a majority in principal
amount of the Outstanding Securities of such series, then, with respect to
such action (and only such action) the Persons entitled to vote such lesser
or greater percentage in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by
the proviso to Section 902, any resolution with respect to any consent or
waiver which this Indenture expressly provides may be given by the Holders
of not less than 66-2/3% in principal amount of the Outstanding Securities
of a series may be adopted at a meeting or an adjourned meeting duly
convened and at which a quorum is present as aforesaid only by the
affirmative vote of the Holders of 66-2/3% in principal amount of the
Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or
other action which this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and at
which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of
the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the
submission and examination or proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy
shall be proved in the manner specified in Section 104 or by having the
signature of the person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1502(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports
of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 1502 and, if applicable, Section 1504. Each
copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered
to the Company, and another to the Trustee to be preserved by the Trustee,
the latter to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601 Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same currency,
or (ii) any distribution to Holders of Securities, in the absence of any
provision to the contrary in the form of Security of any particular series,
any amount in respect of any Security denominated in a currency other than
United States dollars shall be treated for any such action or distribution
as that amount of United States dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no
applicable record date, such other date reasonably proximate to the date of
such action, determination of rights or distribution) as the Company may
specify in a written notice to the Trustee or, in the absence of such
written notice, as the Trustee may determine.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture, to
be duly executed as of the day and year first above written:
VALERO ENERGY CORPORATION
By:_______________________________
Name: John D. Gibbons
Title: Vice President,
Finance and Treasurer
Attest:
_______________________________
Secretary
THE BANK OF NEW YORK,
as Trustee
By:_______________________________
Name:
Title:
VALERO ENERGY CORPORATION Gregory C. King
Vice President &
General Counsel
June 11, 1998
Board of Directors
Valero Energy Corporation
7990 I.H. 10 West
San Antonio, Texas 78230
Ladies and Gentlemen:
I am the Vice President and General Counsel of Valero Energy
Corporation, a Delaware corporation ("Valero") and have acted as counsel
for Valero in connection with the filing by Valero of a shelf registration
statement on Form S-3 (the "Registration Statement") registering up to
$600,000,000 aggregate initial offering price of (i) one or more series
of debentures, notes or other unsecured evidences of indebtedness ("Debt
Securities"), (ii) shares of common stock, $.01 par value per share, of
Valero (the "Common Stock"), (iii) shares of preferred stock, $.01 par
value per share, of Valero (the "Preferred Stock"), and (iv) shares of
Preferred Stock represented by depositary shares (the "Depositary Shares"
and, together with the Debt Securities, Common Stock and the Preferred
Stock, the "Securities") to be issued to the public from time to time.
In furnishing this opinion, I or members of my staff have examined
and relied without investigation as to matters of fact upon, copies of
the Registration Statement, the Restated Certificate of Incorporation and
By-Laws of Valero, as amended to date, the minutes of the meeting of the
board of directors of Valero authorizing the issuance of the Securities,
certificates of public officials, certificates and statements of officers
of the Company, and such other corporate records, documents, certificates
and instruments as I have deemed necessary or appropriate to form a basis
for the opinions expressed herein. I have assumed the genuineness of all
signatures on all documents examined by me, the authenticity of all
documents submitted to me as originals, and the conformity to originals
of all documents submitted to me as copies. I have also assumed the due
authorization, execution and delivery of all documents.
Based upon and subject to the foregoing, and having due regard for
such legal considerations as I have determined relevant, I am of the
opinion that:
1. Valero is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
2. The Common Stock has been duly authorized by all
necessary corporate action of Valero and when (a) the applicable provisions
of the Securities Act of 1933, as amended (the "Securities Act") and such
state "blue sky" or securities laws as may be applicable have been complied
with and (b) the shares of Common Stock have been issued, delivered, and
paid for, such shares of Common Stock will be legally issued, fully paid,
and nonassesable.
3. The Preferred Stock has been duly authorized by all
necessary corporate action of Valero and when (a) the applicable provisions
of the Securities Act and such state "blue sky" or securities laws as may
be applicable have been complied with, (b) Valero's board of directors has
adopted and Valero has duly filed with the Secretary of State of Delaware
a Certificate of Designations establishing the preferences, limitations and
relative voting and other rights of each series of Preferred Stock prior
to issuance thereof and (c) the shares of Preferred Stock have been issued,
delivered, and paid for, such shares of Preferred Stock will be legally
issued, fully paid and nonassessable.
4. The Depositary Shares have been duly authorized by all
necessary corporate action of Valero and when (a) the applicable provisions
of the Securities Act and such state "blue sky" or securities laws as may
be applicable have been complied with, (b) Valero's board of directors has
adopted and Valero has duly filed with the Secretary of State of Delaware a
Certificate of Designations establishing the preferences, limitations and
relative voting and other rights of each series of Preferred Stock
underlying the Depositary Shares and the fractional share of Preferred
Stock represented by each Depositary Share prior to issuance thereof, (c)
the shares of Preferred Stock represented by the Depositary Shares have
been deposited under an enforceable deposit agreement and (d) the
Depositary Shares have been issued, delivered, and paid for, such
Depositary Shares will be legally issued, fully paid, and nonassessable.
5. The Debt Securities have been duly authorized by all
necessary corporate action of Valero and when (a) the applicable provisions
of the Securities Act and such state "blue sky" or securities laws as may
be applicable have been complied with and (b) the Debt Securities have been
issued and delivered for value as contemplated in the Registration Statement,
such Debt Securities will be legally issued and will be the binding
obligation of Valero, except to the extent limited by applicable
bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors generally, and by general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
To the extent that the obligations of Valero as obligor under an
indenture may be dependent upon such matters, I have assumed for purposes
of this opinion (i) that the applicable trustee is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization and is duly qualified to engage in the activities contemplated
by the indenture, (ii) that such indenture has been duly authorized,
executed and delivered by and constitutes the legal, valid and binding
obligation of such trustee, enforceable in accordance with its terms,
(iii) that such trustee is in compliance, generally and with respect to
acting as a trustee under the indenture, with all applicable laws and
regulations and (iv) that such trustee has the requisite organizational
and legal power and authority to perform its obligations under the
indenture.
The opinions expressed herein are limited exclusively to the laws of
the State of Texas, the General Corporation Law of the State of Delaware
and the federal laws of the United States of America.
This opinion may not be quoted in whole or in part, disclosed,
made available to or relied upon by any other person, firm or entity
without my express prior written consent.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and the reference to myself under the caption "Legal
Opinions" in the Prospectus as originally filed or as the same be
subsequently amended or supplemented.
Very truly yours,
/s/ Gregory C. King
Gregory C. King
EXHIBIT 12.1
VALERO ENERGY CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
<TABLE>
<CAPTION>
Three Months
Ended Year
Ended December 31,
March 31,1998 1997 1996 1995 1994 1993
<S> <C> <C> <C> <C> <C> <C>
Pretax income (loss) from
continuing operations. . . . . $ (9,284) $175,557 $ 39,083 $ 88,696 $ 28,803 $ 28,792
Add (Deduct):
Net interest expense <F1>. . . 6,822 42,455 38,534 40,935 38,710 27,663
Amortization of previously
capitalized interest . . . 1,221 4,865 4,801 5,497 5,419 4,932
Interest portion of rental
expense <F2>. . . . . . . . 3,707 13,268 8,913 8,059 3,004 2,748
Distributions in excess of
(less than) equity in
earnings of joint
ventures <F1>. . . . . . . . 604 (1,851) (3,899) (4,304) (2,437) -
Earnings as defined. . . . . . $ 3,070 $234,294 $ 87,432 $138,883 $ 73,499 $ 64,135
Net interest expense <F1>. . . . . $ 6,822 $ 42,455 $ 38,534 $ 40,935 $ 38,710 $ 27,663
Capitalized interest . . . . . . . 754 1,695 2,884 4,117 1,885 12,276
Interest portion of rental
expense <F2> . . . . . . . . . . 3,707 13,268 8,913 8,059 3,004 2,748
Fixed charges as defined . . . $ 11,283 $ 57,418 $ 50,331 $ 53,111 $ 43,599 $ 42,687
Ratio of earnings to fixed
charges <F4> . . . . . . . . . . <F3> 4.08x 1.74x 2.61x 1.69x 1.50x
<FN>
<F1>
(1) During 1993 through September 1997, the Company guaranteed its
pro rata share of the debt of Javelina Company, an equity method investee
in which the Company holds a 20% interest. The interest expense related
to the guaranteed debt is not included in the computation of the ratio
as the Company was not required to satisfy the guarantee.
<F2>
(2) The interest portion of rental expense represents one-third of rents,
which is deemed representative of the interest portion of rental expense.
<F3>
(3) For the three months ended March 31, 1998, earnings were insufficient to
cover fixed charges by $8.2 million. Such deficiency was due primarily to a
$37.7 million pre-tax charge to earnings to write down the carrying amount of
the Company's refinery inventories to market value. Excluding the effect of
the inventory write-down, the ratio of earnings to fixed charges would have
been 3.61x.
<F4>
(4) The Company paid no dividends on preferred stock with respect to its
continuing operations during the periods indicated; therefore, the ratio
of earnings to combined fixed charges and preferred stock dividends is
the same as the ratio of earnings to fixed charges.
</FN>
</TABLE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 14,
1998, included in Valero Energy Corporation's Form 10-K for the year ended
December 31, 1997, and to all references to our firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
San Antonio, Texas
June 11, 1998
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
===================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
_______________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
_______________
VALERO ENERGY CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 74-1828067
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
7990 West 1H 10
San Antonio, Texas 78230-4715
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
===================================================================
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.
- ----------------------------------------------------------------------------
Name Address
- ----------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with
the Commission, are incorporated herein by reference as
an exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment
No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, 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 9th day of June, 1998.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
