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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 4, 1999
REGISTRATION NO. 333-72291
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1993
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CONOCO INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 600 NORTH DAIRY ASHFORD 51-0370352
(State of incorporation) HOUSTON, TEXAS 77079 (I.R.S. Employer
(281) 293-1000 Identification No.)
(Address, including zip code, and
telephone number, including area
code,
of registrant's principal
executive offices)
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R. A. HARRINGTON
SENIOR VICE PRESIDENT, LEGAL, AND GENERAL COUNSEL
CONOCO INC.
600 NORTH DAIRY ASHFORD
HOUSTON, TEXAS 77079
(281) 293-1000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copies to:
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WALTER J. SMITH JOHN W. WHITE
J. DAVID KIRKLAND, JR. CRAVATH, SWAINE & MOORE
BAKER & BOTTS, L.L.P. 825 EIGHTH AVENUE
3000 ONE SHELL PLAZA NEW YORK, NEW YORK 10019
910 LOUISIANA (212) 474-1000
HOUSTON, TEXAS 77002-4995
(713) 229-1234
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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 to be 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, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED OFFERING PRICE(1) REGISTRATION FEE
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Debt Securities(2)........................................ $1,000,000,000 $278,000(3)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act. In no event will the
aggregate initial offering price of all Debt Securities issued from time to
time pursuant to this Registration Statement exceed $1,000,000,000 or the
equivalent thereof in foreign currencies, foreign currency units or
composite currencies. If any Debt Securities are issued at an original issue
discount, then the offering price shall be in such greater principal amount
as shall result in an aggregate initial offering price of up to
$1,000,000,000 or the equivalent thereof in foreign currencies, foreign
currency units or composite currencies, less the dollar amount of any Debt
Securities previously issued hereunder.
(2) There is also being registered hereunder an indeterminate principal amount
of Debt Securities as may be issuable upon conversion, redemption, exchange
or exercise of the Debt Securities registered hereunder, including any
applicable antidilution provisions.
(3) Previously paid.
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, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 4, 1999
PROSPECTUS
LOGO
CONOCO INC.
600 North Dairy Ashford
Houston, Texas 77079
(281) 293-1000
$1,000,000,000
DEBT SECURITIES
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We will provide the specific terms of the securities in supplements to this
prospectus.
You should read this prospectus and any supplement carefully before you invest.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined whether
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999
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TABLE OF CONTENTS
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About This Prospectus....................................... 2
Where You Can Find More Information......................... 2
Forward-Looking Information................................. 4
About Conoco................................................ 4
Use of Proceeds............................................. 5
Ratio of Earnings to Fixed Charges.......................... 5
Description of Debt Securities.............................. 5
Plan of Distribution........................................ 14
Legal Opinions.............................................. 15
Experts..................................................... 15
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with
the Securities and Exchange Commission using a "shelf" registration process.
Using this process, we may offer the securities described in this prospectus in
one or more offerings with a total initial offering price of up to
$1,000,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we offer securities, we will provide a
prospectus supplement and, if applicable, a pricing supplement. The prospectus
supplement and any pricing supplement will describe the specific terms of that
offering. The prospectus supplement and any pricing supplement may also add,
update or change the information contained in this prospectus. Please carefully
read this prospectus, the prospectus supplement and any pricing supplement, in
addition to the information contained in the documents we refer to under the
heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You can read and copy any materials we file with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the SEC's regional offices located at Seven World Trade
Center, New York, New York 10048, and at 500 West Madison Street, Chicago,
Illinois 60661. You can obtain information about the operation of the SEC's
Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also
maintains a Web site that contains information we file electronically with the
SEC, which you can access over the Internet at http://www.sec.gov. You can
obtain information about us at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005 or by visiting our Web site at
http://www.conoco.com.
This prospectus is part of a registration statement we have filed with the
SEC relating to the debt securities. As permitted by SEC rules, this prospectus
does not contain all of the information we have included in the registration
statement and the accompanying exhibits and schedules we file with the SEC. You
may refer to the registration statement, the exhibits and schedules for more
information about us and our debt securities. The registration statement,
exhibits and schedules are available at the SEC's Public Reference Room or
through its Web site.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information we incorporate by reference is
an important part of this prospectus, and later information that we file with
the SEC will automatically update and supersede this information. We incorporate
by reference our annual report on Form 10-K for the year ended December 31,
1998, and any future filings we make with the SEC
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under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until we sell all the debt securities.
You may request a copy of these filings (other than an exhibit to those
filings unless we have specifically incorporated that exhibit by reference into
the filing), at no cost, by writing or telephoning us at the following address:
Conoco Inc.
600 North Dairy Ashford
Houston, Texas 77079
Attention: Capital Markets
Telephone: (281) 293-2648
YOU SHOULD RELY ONLY ON THE INFORMATION WE HAVE PROVIDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANY PERSON (INCLUDING ANY SALESMAN OR BROKER) TO PROVIDE INFORMATION
OTHER THAN THAT PROVIDED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE
HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT
MAKING AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT
PERMITTED. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT OF THE DOCUMENT.
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FORWARD-LOOKING INFORMATION
This prospectus, including the information we incorporate by reference,
includes 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.
You can identify our forward-looking statements by the words "expects,"
"intends," "plans," "projects," "believes," "estimates" and similar expressions.
We have based the forward-looking statements relating to our operations on
our current expectations, estimates and projections about us and the petroleum
industry in general. We caution you that these statements are not guarantees of
future performance and involve risks, uncertainties and assumptions that we
cannot predict. In addition, we have based many of these forward-looking
statements on assumptions about future events that may prove to be inaccurate.
Accordingly, our actual outcomes and results may differ materially from what we
have expressed or forecast in the forward-looking statements. Any differences
could result from a variety of factors, including the following:
- fluctuations in crude oil and natural gas prices
- refining and marketing margins
- failure or delays in achieving expected production from oil and gas
development projects
- uncertainties inherent in predicting oil and gas reserves and oil
and gas reservoir performance
- lack of exploration success
- disruption or interruption of our production facilities due to
accidents or political events
- international monetary conditions and exchange controls
- liability for remedial actions under environmental regulations
- disruption to our operations due to untimely or incomplete
resolution of Year 2000 issues by us or other entities
- liability resulting from litigation
- world economic and political conditions
- changes in tax and other laws applicable to our business
ABOUT CONOCO
Conoco Inc. is a major, integrated, international energy company operating
in 40 countries worldwide. We were founded in 1875 and are involved in both the
"Upstream" and "Downstream" segments of the petroleum business. Upstream
activities include exploring for and developing, producing and selling crude
oil, natural gas and natural gas liquids. Downstream activities include refining
crude oil and other feedstocks into petroleum products, buying and selling crude
oil and refined products and transporting, distributing and marketing petroleum
products.
In this prospectus, we refer to Conoco Inc., its wholly owned and majority
owned subsidiaries and its ownership interest in equity affiliates as "we,"
unless the context clearly indicates otherwise. Our ownership interest in equity
affiliates includes corporate entities, partnerships, limited liability
companies and other ventures in which we exert significant influence by virtue
of our ownership interest, typically between 20 and 50 percent.
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USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement, we will use
the net proceeds from the sale of the offered securities for general corporate
purposes. These purposes may include repayment and refinancing of debt
(including debt owed to E. I. du Pont de Nemours and Company), acquisitions,
working capital, capital expenditures and repurchases and redemptions of
securities. Pending any specific application, we may initially invest funds in
short-term marketable securities or apply them to the reduction of short-term
indebtedness.
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods shown is as
follows:
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YEAR ENDED DECEMBER 31,
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1998 1997 1996 1995 1994
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Ratio of earnings to fixed charges........................ 3.2x 12.9x 11.6x 7.3x 7.3x
Ratio of earnings before special items to fixed charges... 4.6x 12.4x 11.5x 7.7x 8.0x
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We have computed the ratios of earnings to fixed charges by dividing
earnings by fixed charges. For this purpose, "earnings" consist of income before
income taxes and extraordinary items and fixed charges. "Fixed charges" consist
of interest expense, capitalized interest, amortization of debt expense and that
portion of annual rental expense we have deemed to represent the interest
factor.
For the ratio of earnings before special items to fixed charges, we have
excluded special items from the computation of earnings. Special items are
material nonrecurring items and generally consist of asset sales, property
impairments, tax rate changes, employee separation costs, inventory write-downs,
environmental insurance litigation recoveries, environmental litigation charges
and, in 1998, stock option provision. For more information about our special
items, please read "Results of Operations -- Special Items" beginning on page 44
in Item 7 of our annual report on Form 10-K for the year ended December 31,
1998.
DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our general
unsecured obligations. The debt securities will be issued under an indenture
between us and a trustee that we will name in the prospectus supplement.
We have summarized selected provisions of the indenture and the debt
securities below. This summary is not complete. We have filed the form of the
indenture with the SEC as an exhibit to the registration statement, and you
should read the indenture for provisions that may be important to you.
In this summary description of the debt securities, all references to us
mean Conoco Inc. only, unless we state otherwise or the context clearly
indicates otherwise.
GENERAL
The debt securities will constitute senior debt and will rank equally with
all of our unsecured and unsubordinated debt. The indenture does not limit the
amount of debt that we may issue under the indenture, nor does it limit the
amount of other unsecured debt or securities that we may issue. We may issue
debt securities under the indenture from time to time in one or more series,
each in an amount we authorize prior to issuance.
We currently conduct substantially all our operations through our
subsidiaries, and our subsidiaries generate substantially all our operating
income and cash flow. As a result, distributions or advances from our
subsidiaries are the principal source of funds necessary to meet our debt
service obligations. Contractual provisions or laws, as well as our
subsidiaries' financial condition and operating requirements,
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may limit our ability to obtain cash from our subsidiaries that we require to
pay our debt service obligations, including payments on the debt securities. In
addition, holders of the debt securities will have a junior position to the
claims of creditors of our subsidiaries on their assets and earnings.
Other than the restrictions on liens and sale/leaseback transactions
described below, the indenture and the debt securities do not contain any
covenants or other provisions designed to protect holders of the debt securities
in the event we participate in a highly leveraged transaction. The indenture and
the debt securities also do not contain provisions that give holders of the debt
securities the right to require us to repurchase their securities in the event
of a decline in our credit ratings resulting from a takeover, recapitalization
or similar restructuring or otherwise.
The prospectus supplement relating to any series of debt securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
- The title of the debt securities
- The total principal amount of the debt securities
- Whether we will issue the debt securities in individual certificates
to each holder or in the form of temporary or permanent global
securities held by a depository on behalf of holders
- The date or dates on which the principal of and any premium on the
debt securities will be payable
- Any interest rate, the date from which interest will accrue,
interest payment dates and record dates for interest payments
- Whether and under what circumstances any additional amounts with
respect to the debt securities will be payable
- The place or places where payments on the debt securities will be
payable
- Any provisions for optional redemption or early repayment
- Any provisions that would obligate us to redeem, purchase or repay
debt securities
- The denominations in which we will issue the debt securities
- Whether payments on the debt securities will be payable in foreign
currency or currency units or another form and whether payments will
be payable by reference to any index or formula
- The portion of the principal amount of debt securities that will be
payable if the maturity is accelerated, if other than the entire
principal amount
- Any additional means of defeasance of the debt securities, any
additional conditions or limitations to defeasance of the debt
securities or any changes to those conditions or limitations
- Any changes or additions to the events of default or covenants
described in this prospectus
- Any restrictions or other provisions relating to the transfer or
exchange of debt securities
- Any terms for the conversion or exchange of the debt securities for
other securities of us or any other entity
We may sell the debt securities at a discount (which may be substantial)
below their stated principal amount. These debt securities may bear no interest
or interest at a rate that at the time of issuance is below market rates. We
will describe in the prospectus supplement any material United States federal
income tax consequences and other special considerations.
If we sell any of the debt securities for any foreign currency or currency
unit or if payments on the debt securities are payable in any foreign currency
or currency unit, we will describe in the prospectus
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supplement the restrictions, elections, tax consequences, specific terms and
other information relating to those debt securities and the foreign currency or
currency unit.
RESTRICTIVE COVENANTS
We have agreed to two principal restrictions on our activities for the
benefit of holders of the debt securities. The restrictive covenants summarized
below will apply to a series of debt securities (unless waived or amended) as
long as any of those debt securities are outstanding, unless the prospectus
supplement for the series states otherwise. We have used in this summary
description capitalized terms that we have defined below under "-- Glossary." In
this description of the covenants only, all references to us mean Conoco Inc.
and its principal domestic subsidiaries, unless the context clearly indicates
otherwise. Our principal domestic subsidiaries are those that have substantially
all their assets in the United States and that own a Principal Property.
Limitation on Liens
We have agreed that we will issue, assume or guarantee debt for borrowed
money secured by a lien upon a Principal Property or shares of stock or debt of
any of our principal domestic subsidiaries only if we secure the debt securities
equally and ratably with or prior to the debt secured by that lien. If we so
secure the debt securities, we have the option to secure any of our other debt
or obligations equally and ratably with or prior to the debt secured by the lien
and, accordingly, equally and ratably with the debt securities. This covenant
has exceptions that permit:
(a) Liens existing on the date we first issue a series of debt
securities
(b) Liens on the property, assets, stock, equity or debt of any entity
existing at the time we acquire that entity or its property or at the time
the entity becomes a principal domestic subsidiary
(c) Liens on assets either:
- existing at the time we acquire the assets
- securing all or part of the cost of acquiring, constructing,
improving, developing or expanding the assets or
- securing debt to finance the purchase price of the assets or
the cost of constructing, improving, developing or expanding
the assets that was incurred before, at or within 12 months
after the acquisition or completion of the assets or their
commencing commercial operation
(d) Liens on specific assets to secure debt incurred to provide funds
for the cost of exploration, drilling or development of those assets
(e) Intercompany liens in favor of us
(f) Liens securing industrial development, pollution control or other
revenue bonds of a domestic government entity
(g) Statutory or other liens arising in the ordinary course of our
business and relating to amounts that are not yet delinquent or that we are
contesting in good faith
(h) Any extensions, substitutions, replacements or renewals of the
above-described liens or any debt secured by these liens if both
- the new lien is limited to the property (plus any
improvements) secured by the original lien and
- the amount of debt secured by the new lien and not otherwise
permitted does not materially exceed the amount of debt
refinanced plus any costs incurred to refinance the debt
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In addition, without securing the debt securities as described above, we
may issue, assume or guarantee debt that this covenant would otherwise restrict
in a total principal amount that, when added to all of our other outstanding
debt that this covenant would otherwise restrict and the total amount of
Attributable Debt outstanding for Sale/Leaseback Transactions, does not exceed a
"basket" equal to 10% of Consolidated Net Tangible Assets. When calculating this
total principal amount, we exclude from the calculation Attributable Debt from
Sale/Leaseback Transactions in connection with which we have purchased property
or retired or defeased debt as described in clause (b) below under "Limitation
on Sale/Leaseback Transactions."
For these purposes, "debt" includes all notes, bonds, debentures or similar
evidences of debt for money borrowed. The following types of transactions do not
create "debt" secured by "liens" within the meaning of this covenant:
(a) The sale or other transfer of either:
- oil, gas or other minerals in place for a period of time until, or
in an amount such that, the purchaser will realize from those
minerals a specified amount of money or a specified amount of those
minerals or
- any other interest in property commonly referred to as a
"production payment"
(b) The mortgage or pledge of our property in favor of the United
States, any state of the United States or any department, agency or
instrumentality of either, to secure payments under any contract or statute
Limitation on Sale/Leaseback Transactions
We have agreed that we will enter into a Sale/Leaseback Transaction only if
at least one of the following applies:
(a) We could incur debt in a principal amount equal to the
Attributable Debt for that Sale/ Leaseback Transaction and, without
violating the "Limitation on Liens" covenant, could secure that debt by a
lien on the property to be leased without equally and ratably securing the
debt securities.
(b) Within the period beginning six months before the closing of the
Sale/Leaseback Transaction and ending six months after the closing, we
apply the net proceeds of the Sale/Leaseback Transaction either:
- to the voluntary defeasance or retirement of any debt
securities or Funded Debt or
- to the acquisition, exploration, drilling, development,
construction, improvement or expansion of one or more Principal
Properties
Any amount of the net proceeds we do not apply for these purposes will be
subject to the limitation described in (a). For purposes of these
calculations, the net proceeds of the Sale/Leaseback Transaction means the
net proceeds of the sale or transfer of the property leased in the Sale/
Leaseback Transaction (or, if greater, the fair value of that property at
the time of the Sale/ Leaseback Transaction as determined by our board of
directors) adjusted to reflect the remaining term of the lease.
Glossary
"Attributable Debt" means the present value of the rental payments during
the remaining term of the lease included in the Sale/Leaseback Transaction. To
determine that present value, we use a discount rate equal to the lease rate of
the Sale/Leaseback Transaction. For these purposes, rental payments do not
include any amounts we are required to pay for taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and other items
that do not constitute payments for property rights. In the case of any lease
that we may terminate by paying a penalty, if the net amount would be reduced if
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we terminated the lease on the first date that it could be terminated, then this
lower net amount will be used.
"Consolidated Net Tangible Assets" means the total amount of assets (after
deducting applicable accumulated depreciation, depletion and amortization and
other reserves and other properly deductible items) less
- all current liabilities (excluding liabilities that are extendable
or renewable at our option to a date more than 12 months after the
date of calculation and excluding current maturities of long-term
debt) and
- all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangible assets
We will calculate our Consolidated Net Tangible Assets based on our most recent
quarterly balance sheet.
The term "debt" means all notes, bonds, debentures or similar evidences of
debt for money borrowed.
"Funded Debt" means all debt that matures on or is renewable to a date more
than one year after the date the debt is incurred.
"Principal domestic subsidiary" means a subsidiary that has substantially
all its assets in the United States and that owns a Principal Property.
"Principal Property" means any oil or gas producing property located
onshore or offshore of the United States or any refinery or manufacturing plant
located in the United States. This term excludes any property, refinery or plant
that in our Board's opinion is not materially important to the total business
conducted by us and our consolidated subsidiaries. This term also excludes any
transportation or marketing facilities or assets.
"Sale/Leaseback Transaction" means any arrangement with anyone under which
we lease any Principal Property that we have or will sell or transfer to that
person. This term excludes the following:
- temporary leases for a term of not more than three years
- intercompany leases between us and one of our subsidiaries or
between two or more of our subsidiaries
- leases of a Principal Property executed by the time of or within 12
months after the acquisition, the completion of construction or
improvement, or the commencement of commercial operation of the
Principal Property
- arrangements under any provision of law with an effect similar to
the former Section 168(f)(8) of the Internal Revenue Code of 1954
CONSOLIDATION, MERGER AND SALE OF ASSETS
The indenture generally permits a consolidation or merger between us and
another entity. It also permits the sale by us of all or substantially all of
our assets. We have agreed, however, that we will consolidate with or merge into
any entity or transfer or dispose of all or substantially all of our assets to
any entity only if:
- we are the continuing corporation or
- if we are not the continuing corporation, the resulting entity is
organized and existing under the laws of any United States
jurisdiction and assumes the due and punctual payments on the debt
securities and the performance of our covenants and obligations
under the indenture and the debt securities and
- in either case, immediately after giving effect to the transaction,
no default or event of default would occur and be continuing or
would result from the transaction
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EVENTS OF DEFAULT
Unless we inform you otherwise in the prospectus supplement, the following
are events of default with respect to a series of debt securities:
- our failure to pay interest on that series of debt securities for 30 days
- our failure to pay principal of or any premium on that series of debt
securities when due
- our failure to redeem, purchase or repay debt securities of that
series
- our failure to comply with any of our covenants or agreements in
that series of debt securities or the indenture (other than an
agreement or covenant that we have included in the indenture solely
for the benefit of other series of debt securities) for 90 days
after written notice by the trustee or by the holders of at least
25% in principal amount of all outstanding debt securities affected
by that failure
- certain events involving bankruptcy, insolvency or reorganization of
Conoco Inc.
- any other event of default provided for that series of debt
securities
A default under one series of debt securities will not necessarily be a
default under another series. The trustee may withhold notice to the holders of
the debt securities of any default or event of default (except in any payment on
the debt securities) if the trustee considers it in the interest of the holders
of the debt securities to do so.
If an event of default for any series of debt securities occurs and is
continuing, the trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of the series affected by the default (or, in
some cases, 25% in principal amount of all debt securities affected, voting as
one class) may require us to pay the principal of and all accrued and unpaid
interest on those debt securities. If an event of default relating to certain
events of bankruptcy, insolvency or reorganization occurs, the principal of and
interest on all the debt securities will become immediately due and payable
without any action on the part of the trustee or any holder. The holders of a
majority in principal amount of the outstanding debt securities of the series
affected by the default (or of all debt securities affected, voting as one
class) may in some cases rescind this accelerated payment requirement.
A holder of a debt security of any series may pursue any remedy under the
indenture only if:
- the holder gives the trustee written notice of a continuing event of
default for that series
- the holders of at least 25% in principal amount of the outstanding
debt securities of that series make a written request to the trustee
to pursue the remedy
- the holder offers to the trustee indemnity reasonably satisfactory
to the trustee
- the trustee fails to act for a period of 60 days after receipt of
notice and offer of indemnity and
- during that 60-day period, the holders of a majority in principal
amount of the debt securities of that series do not give the trustee
a direction inconsistent with the request
This provision does not, however, affect the right of a holder of a debt
security to sue for enforcement of any overdue payment.
In most cases, holders of a majority in principal amount of the outstanding
debt securities of a series (or of all debt securities affected, voting as one
class) may direct the time, method and place of
- conducting any proceeding for any remedy available to the trustee
- exercising any trust or power conferred on the trustee not relating
to or arising under an event of default
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<PAGE> 12
The indenture requires us to file each year with the trustee a written
statement as to our compliance with the covenants contained in the indenture.
MODIFICATION AND WAIVER
We may amend or supplement the indenture if the holders of a majority in
principal amount of the outstanding debt securities of all series affected by
the amendment or supplement (acting as one class) consent to it. Without the
consent of the holder of each debt security affected, however, no modification
may:
- reduce the amount of debt securities whose holders must consent to
an amendment, supplement or waiver
- reduce the rate of or change the time for payment of interest on the
debt security
- reduce the principal of the debt security or change its stated
maturity
- reduce any premium payable on the redemption of the debt security or
change the time at which the debt security may or must be redeemed
- change any obligation to pay additional amounts on the debt security
- make payments on the debt security payable in currency other than as
originally stated in the debt security
- impair the holder's right to institute suit for the enforcement of
any payment on the debt security
- make any change in the percentage of principal amount of debt
securities necessary to waive compliance with certain provisions of
the indenture or to make any change in this provision for
modification
- waive a continuing default or event of default regarding any payment
on the debt securities
We may amend or supplement the indenture or waive any provision of it
without the consent of any holders of debt securities in certain circumstances,
including
- to cure any ambiguity, omission, defect or inconsistency
- to provide for the assumption of our obligations under the indenture
by a successor upon any merger, consolidation or asset transfer
- to provide for uncertificated debt securities in addition to or in
place of certificated debt securities or to provide for bearer debt
securities
- to provide any security for or guarantees of any series of debt
securities
- to comply with any requirement to effect or maintain the
qualification of the indenture under the Trust Indenture Act of 1939
- to add covenants that would benefit the holders of any debt
securities or to surrender any rights we have under the indenture
- to add events of default with respect to any debt securities
- to make any change that does not adversely affect any outstanding
debt securities of any series in any material respect
The holders of a majority in principal amount of the outstanding debt
securities of any series (or of all debt securities affected, voting as one
class) may waive any existing or past default or event of default with respect
to those debt securities. Those holders may not, however, waive any default or
event of
11
<PAGE> 13
default in any payment on any debt security or compliance with a provision that
cannot be amended or supplemented without the consent of each holder affected.
DEFEASANCE
When we use the term defeasance, we mean discharge from some or all of our
obligations under the indenture. If we deposit with the trustee funds or
government securities sufficient to make payments on the debt securities of a
series on the dates those payments are due and payable, then, at our option,
either of the following will occur:
- we will be discharged from our obligations with respect to the debt
securities of that series ("legal defeasance") or
- we will no longer have any obligation to comply with the restrictive
covenants under the indenture, and the related events of default
will no longer apply to us ("covenant defeasance")
If we defease a series of debt securities, the holders of the debt
securities of the series affected will not be entitled to the benefits of the
indenture, except for our obligations to register the transfer or exchange of
debt securities, replace stolen, lost or mutilated debt securities or maintain
paying agencies and hold moneys for payment in trust. In the case of covenant
defeasance, our obligation to pay principal, premium and interest on the debt
securities will also survive.
Unless we inform you otherwise in the prospectus supplement, we will be
required to deliver to the trustee an opinion of counsel that the deposit and
related defeasance would not cause the holders of the debt securities to
recognize income, gain or loss for federal income tax purposes. If we elect
legal defeasance, that opinion of counsel must be based upon a ruling from the
United States Internal Revenue Service or a change in law to that effect.
GOVERNING LAW
New York law will govern the indenture and the debt securities.
TRUSTEE
If an event of default occurs and is continuing, the trustee will be
required to use the degree of care and skill of a prudent man in the conduct of
his own affairs. The trustee will become obligated to exercise any of its powers
under the indenture at the request of any of the holders of any debt securities
only after those holders have offered the trustee indemnity reasonably
satisfactory to it.
The indenture contains limitations on the right of the trustee, if it
becomes one of our creditors, to obtain payment of claims or to realize on
certain property received for any such claim, as security or otherwise. The
trustee is permitted to engage in other transactions with us. If, however, it
acquires any conflicting interest, it must eliminate that conflict or resign.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
We will issue the debt securities in registered form, without interest
coupons. We will not charge a service charge for any registration of transfer or
exchange of the debt securities. We may, however, require the payment of any tax
or other governmental charge payable for that registration.
Debt securities of any series will be exchangeable for other debt
securities of the same series, the same total principal amount and the same
terms but in different authorized denominations in accordance with the
indenture. Holders may present debt securities for registration of transfer at
the office of the security registrar or any transfer agent we designate. The
security registrar or transfer agent will effect the transfer or exchange when
it is satisfied with the documents of title and identity of the person making
the request.
12
<PAGE> 14
We have appointed the trustee as security registrar for the debt
securities. If a prospectus supplement refers to any transfer agents initially
designated by us, we may at any time rescind that designation or approve a
change in the location through which any transfer agent acts. We are required to
maintain an office or agency for transfers and exchanges in each place of
payment. We may at any time designate additional transfer agents for any series
of debt securities.
In the case of any redemption, neither the security registrar nor the
transfer agent will be required to register the transfer or exchange of any debt
security either:
- during a period beginning 15 business days prior to the mailing of
the relevant notice of redemption and ending on the close of
business on the day of mailing of such notice or
- if we have called the debt security for redemption in whole or in
part, except the unredeemed portion of any debt security being
redeemed in part
PAYMENT AND PAYING AGENTS
Unless we inform you otherwise in a prospectus supplement, payments on the
debt securities will be made in U.S. dollars at the office of the trustee. At
our option, however, we may make payments by check mailed to the holder's
registered address or, with respect to global debt securities, by wire transfer.
Unless we inform you otherwise in a prospectus supplement, we will make interest
payments to the person in whose name the debt security is registered at the
close of business on the record date for the interest payment.
Unless we inform you otherwise in a prospectus supplement, the trustee will
be designated as our paying agent for payments on debt securities issued under
the indenture. We may at any time designate additional paying agents or rescind
the designation of any paying agent or approve a change in the office through
which any paying agent acts.
Subject to the requirements of any applicable abandoned property laws, the
trustee and paying agent shall pay to us upon written request any money held by
them for payments on the debt securities that remain unclaimed for two years
after the date upon which that payment has become due. After payment to us,
holders entitled to the money must look to us for payment. In that case, all
liability of the trustee or paying agent with respect to that money will cease.
BOOK-ENTRY DEBT SECURITIES
We may issue the debt securities of a series in the form of one or more
global debt securities that would be deposited with a depositary or its nominee
identified in the prospectus supplement. We may issue global debt securities in
either temporary or permanent form. We will describe in the prospectus
supplement the terms of any depositary arrangement and the rights and
limitations of owners of beneficial interests in any global debt security.
13
<PAGE> 15
PLAN OF DISTRIBUTION
We may sell the offered securities in and outside the United States (a)
through underwriters or dealers, (b) directly to purchasers or (c) through
agents. The prospectus supplement will include the following information:
- the terms of the offering
- the names of any underwriters or agents
- the purchase price of the securities from us
- the net proceeds to us from the sale of the securities
- any delayed delivery arrangements
- any underwriting discounts and other items constituting underwriters'
compensation
- any initial public offering price
- any discounts or concessions allowed or reallowed or paid to dealers.
SALE THROUGH UNDERWRITERS OR DEALERS
If we use underwriters in the sale, the underwriters will acquire the debt
securities for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, whereby selling concessions allowed
to syndicate members or other broker-dealers for the offered securities sold for
their account may be reclaimed by the syndicate if such offered securities are
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might otherwise
prevail in the open market. If commenced, these activities may be discontinued
at any time.
If we use dealers in the sale of securities, we will sell the securities to
them as principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. We will include
in the prospectus supplement the names of the dealers and the terms of the
transaction.
DIRECT SALES AND SALES THROUGH AGENTS
We may sell the securities directly. In this case, no underwriters or
agents would be involved. We may also sell the securities through agents we
designate from time to time. In the prospectus supplement, we will name any
agent involved in the offer or sale of the offered securities, and we will
describe any commissions payable by us to the agent. Unless we inform you
otherwise in the prospectus supplement, any agent will agree to use its
reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act of
1933 with respect to any sale of those securities. We will describe the terms of
any such sales in the prospectus supplement.
14
<PAGE> 16
DELAYED DELIVERY CONTRACTS
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
GENERAL INFORMATION
We may have agreements with the agents, dealers and underwriters to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act of 1933, or to contribute with respect to payments that the
agents, dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their businesses.
LEGAL OPINIONS
R. A. Harrington, our Senior Vice President, Legal, and General Counsel, or
another of our lawyers, or Baker & Botts, L.L.P., Houston, Texas, our outside
counsel, will issue an opinion about the legality of the offered securities for
us. Any underwriters will be advised about other issues relating to any offering
by their own legal counsel.
EXPERTS
The financial statements incorporated in this prospectus by reference to
the annual report on Form 10-K for the year ended December 31, 1998, have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
15
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses payable by Conoco Inc. (the
"Company") in connection with the issuance and distribution of the securities
being registered. All the amounts shown are estimates, except the registration
fee.
<TABLE>
<S> <C>
Registration Fee............................................ $278,000
Printing and Engraving Expenses............................. *
Legal Fees and Expenses..................................... *
Accounting Fees and Expenses................................ *
Fees and Expenses of Trustee and Counsel.................... *
Rating Agency Fees.......................................... *
Miscellaneous Expenses...................................... *
--------
Total............................................. $ *
========
</TABLE>
- ------------------------
* To be filed by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify directors and officers as well as other employees and
individuals against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation -- a "derivative action"),
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard is applicable in the case of derivative
actions, except that indemnification only extends to expenses (including
attorneys' fees) incurred in connection with the defense or settlement of such
action, and the statute requires court approval before there can be any
indemnification where the person seeking indemnification has been found liable
to the corporation. The statute provides that it is not exclusive of other
indemnification that may be granted by a corporation's charter, By-laws,
disinterested director vote, stockholder vote, agreement or otherwise.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personably liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) for
payments of unlawful dividends or unlawful stock repurchases or redemptions, or
(iv) for any transaction from which the director derived an improper personal
benefit.
Article 5E(2) of the Company's Certificate of Incorporation provides that
no director shall be personally liable to the Company or any of its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to section
174 of the Delaware General Corporation Law or (iv) for any transaction from
which the director derived an improper personal benefit. Any repeal or
modification of such Article 5E(2) shall not adversely affect any right or
protection of a director of the Company for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal. The
Company's By-laws provide for indemnification of directors and officers to the
maximum extent permitted by Delaware law.
II-1
<PAGE> 18
The Company has entered into indemnification agreements with each of its
directors (collectively, "Indemnitees"). Such agreements provide that, to the
fullest extent permitted by applicable law, the Company shall indemnify and hold
each Indemnitee harmless from and against any and all losses and expenses
whatsoever (i) arising out of any event or occurrence related to the fact that
such Indemnitee is or was a director or officer of the Company, is or was
serving in another capacity with the Company, or by reason of anything done or
not done by such Indemnitee in such capacity and (ii) incurred in connection
with any threatened, pending or completed legal proceeding.
ITEM 16. EXHIBITS.*
<TABLE>
<C> <S>
4.1 -- Form of Indenture between the Company and the Trustee
relating to the debt securities.
+5.1 -- Opinion of R. A. Harrington with respect to legality of
debt securities offered hereby.
12.1 -- Computation of ratio of earnings to fixed charges.
23.1 -- Consent of PricewaterhouseCoopers LLP.
+23.2 -- Consent of R. A. Harrington (contained in Exhibit 5.1).
**24.1 -- Powers of Attorney (included on the signature page of the
Registration Statement).
</TABLE>
- ------------------------
* The Company will file as an exhibit to a Current Report on Form 8-K (i) any
underwriting agreement relating to debt securities offered hereby, (ii) the
instruments setting forth the terms of any debt securities, (iii) any required
opinion of counsel to the Company as to certain tax matters relative to debt
securities offered hereby and (iv) the Statement of Eligibility and
Qualification under the Trust Indenture Act of 1939, as amended, of the
Trustee.
** Previously filed.
+ To be filed by amendment.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) of the Securities Act of
1933 if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
II-2
<PAGE> 19
provided, however, that paragraphs (a)(1)(i) and (a)(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 by the registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
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 of 1933 and will be governed by the final adjudication of such
issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, 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 of 1933 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 of 1933, 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.
II-3
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
reasonably believes that the security-rating requirement pursuant to Transaction
Requirement B.2 will be met by the time of sale of the securities registered
hereby and 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 Houston, State of Texas, on March 4, 1999.
CONOCO INC.
By: /s/ Robert W. Goldman
------------------------------------
Robert W. Goldman
Senior Vice President, Finance, and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON MARCH 4, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* President, Chief Executive Officer and
- ----------------------------------------------------- Director
Archie W. Dunham
/s/ Robert W. Goldman Senior Vice President, Finance, and Chief
- ----------------------------------------------------- Financial Officer
Robert W. Goldman
* Controller
- -----------------------------------------------------
W. David Welch
* Chairman of the Board and Director
- -----------------------------------------------------
Edgar S. Woolard, Jr.
* Director
- -----------------------------------------------------
Ruth R. Harkin
* Director
- -----------------------------------------------------
Frank A. McPherson
* Director
- -----------------------------------------------------
Gary M. Pfeiffer
* Director
- -----------------------------------------------------
William K. Reilly
Director
- -----------------------------------------------------
William R. Rhodes
* Director
- -----------------------------------------------------
Franklin A. Thomas
*By: /s/ Robert W. Goldman
- ----------------------------------------------------
Robert W. Goldman
Attorney-in-fact
</TABLE>
II-4
<PAGE> 21
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
4.1 -- Form of Indenture between the Company and the Trustee
relating to the debt securities
+5.1 -- Opinion of R. A. Harrington with respect to legality of
debt securities offered hereby
12.1 -- Computation of ratio of earnings to fixed charges
23.1 -- Consent of PricewaterhouseCoopers LLP
+23.2 -- Consent of R. A. Harrington (contained in Exhibit 5.1)
*24.1 -- Powers of Attorney (included on the signature page of the
Registration Statement)
</TABLE>
- ---------------
* Previously filed.
+ To be filed by amendment.
<PAGE> 1
================================================================================
CONOCO INC.
as Issuer
and
------------------------
as Trustee
------------------------------------
Indenture
Dated as of ______________, 1999
------------------------------------
Debt Securities
================================================================================
<PAGE> 2
CONOCO INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _______________, 1999
------------------------------------
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
<S> <C> <C>
Section 310 (a)(1).......................................................................... 7.10
(a)(2).......................................................................... 7.10
(a)(3).......................................................................... Not Applicable
(a)(4).......................................................................... Not Applicable
(a)(5).......................................................................... 7.10
(b)............................................................................. 7.08, 7.10
Section 311 (a)............................................................................. 7.11
(b)............................................................................. 7.11
(c)............................................................................. Not Applicable
Section 312 (a)............................................................................. 2.07
(b)............................................................................. 10.03
(c)............................................................................. 10.03
Section 313 (a)............................................................................. 7.06
(b)............................................................................. 7.06
(c)............................................................................. 7.06
(d)............................................................................. 7.06
Section 314 (a)............................................................................. 4.03, 4.04
(b)............................................................................. Not Applicable
(c)(1).......................................................................... 10.04
(c)(2).......................................................................... 10.04
(c)(3).......................................................................... Not Applicable
(d)............................................................................. Not Applicable
(e)............................................................................. 10.05
Section 315 (a)............................................................................. 7.01(b)
(b)............................................................................. 7.05
(c)............................................................................. 7.01(a)
(d)............................................................................. 7.01(c)
(d)(1).......................................................................... 7.01(c)(1)
(d)(2).......................................................................... 7.01(c)(2)
(d)(3).......................................................................... 7.01(c)(3)
(e)............................................................................. 6.11
Section 316 (a)(1)(A)....................................................................... 6.05
(a)(1)(B)....................................................................... 6.04
(a)(2).......................................................................... Not Applicable
(a)(last sentence).............................................................. 2.11
(b)............................................................................. 6.07
Section 317 (a)(1).......................................................................... 6.08
(a)(2).......................................................................... 6.09
(b)............................................................................. 2.06
Section 318 (a)............................................................................. 10.01
</TABLE>
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
SECTION 1.01 Definitions........................................................................... 1
SECTION 1.02 Other Definitions..................................................................... 7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act..................................... 7
SECTION 1.04 Rules of Construction................................................................. 8
ARTICLE II
THE SECURITIES
SECTION 2.01 Amount Unlimited; Issuable in Series.................................................. 8
SECTION 2.02 Denominations......................................................................... 11
SECTION 2.03 Forms Generally....................................................................... 11
SECTION 2.04 Execution, Authentication, Delivery and Dating........................................ 12
SECTION 2.05 Registrar and Paying Agent............................................................ 14
SECTION 2.06 Paying Agent to Hold Money in Trust................................................... 14
SECTION 2.07 Holder Lists.......................................................................... 14
SECTION 2.08 Transfer and Exchange................................................................. 15
SECTION 2.09 Replacement Securities................................................................ 15
SECTION 2.10 Outstanding Securities................................................................ 16
SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and
Treasury Securities................................................................... 16
SECTION 2.12 Temporary Securities.................................................................. 16
SECTION 2.13 Cancellation.......................................................................... 17
SECTION 2.14 Payments; Defaulted Interest.......................................................... 17
SECTION 2.15 Persons Deemed Owners................................................................. 17
SECTION 2.16 Computation of Interest............................................................... 18
SECTION 2.17 Global Securities; Book-Entry Provisions.............................................. 18
ARTICLE III
REDEMPTION
SECTION 3.01 Applicability of Article.............................................................. 20
SECTION 3.02 Notice to the Trustee................................................................. 20
SECTION 3.03 Selection of Securities To Be Redeemed................................................ 20
SECTION 3.04 Notice of Redemption.................................................................. 21
SECTION 3.05 Effect of Notice of Redemption........................................................ 22
SECTION 3.06 Deposit of Redemption Price........................................................... 22
SECTION 3.07 Securities Redeemed or Purchased in Part.............................................. 22
SECTION 3.08 Purchase of Securities................................................................ 22
</TABLE>
-i-
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 3.09 Mandatory and Optional Sinking Funds.................................................. 23
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities................................. 23
SECTION 3.11 Redemption of Securities for Sinking Fund............................................. 23
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Securities................................................................. 24
SECTION 4.02 Maintenance of Office or Agency....................................................... 24
SECTION 4.03 SEC Reports; Financial Statements..................................................... 25
SECTION 4.04 Compliance Certificate................................................................ 25
SECTION 4.05 Corporate Existence................................................................... 26
SECTION 4.06 Waiver of Stay, Extension or Usury Laws............................................... 26
SECTION 4.07 Additional Amounts.................................................................... 26
SECTION 4.08 Limitation on Liens................................................................... 27
SECTION 4.09 Limitation on Sale/Leaseback Transactions............................................. 28
ARTICLE V
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations............................................. 28
SECTION 5.02 Successor Person Substituted.......................................................... 29
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default..................................................................... 29
SECTION 6.02 Acceleration.......................................................................... 31
SECTION 6.03 Other Remedies........................................................................ 32
SECTION 6.04 Waiver of Defaults.................................................................... 32
SECTION 6.05 Control by Majority................................................................... 32
SECTION 6.06 Limitations on Suits.................................................................. 33
SECTION 6.07 Rights of Holders to Receive Payment.................................................. 33
SECTION 6.08 Collection Suit by Trustee............................................................ 33
SECTION 6.09 Trustee May File Proofs of Claim...................................................... 34
SECTION 6.10 Priorities............................................................................ 34
SECTION 6.11 Undertaking for Costs................................................................. 35
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee..................................................................... 35
SECTION 7.02 Rights of Trustee..................................................................... 36
SECTION 7.03 May Hold Securities................................................................... 37
SECTION 7.04 Trustee's Disclaimer.................................................................. 37
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 7.05 Notice of Defaults.................................................................... 37
SECTION 7.06 Reports by Trustee to Holders......................................................... 37
SECTION 7.07 Compensation and Indemnity............................................................ 38
SECTION 7.08 Replacement of Trustee................................................................ 38
SECTION 7.09 Successor Trustee by Merger, etc...................................................... 40
SECTION 7.10 Eligibility; Disqualification......................................................... 40
SECTION 7.11 Preferential Collection of Claims Against Company..................................... 41
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of Company's Obligations.................................................. 41
SECTION 8.02 Application of Trust Money............................................................ 45
SECTION 8.03 Repayment to Company.................................................................. 45
SECTION 8.04 Reinstatement......................................................................... 45
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01 Without Consent of Holders............................................................ 46
SECTION 9.02 With Consent of Holders............................................................... 47
SECTION 9.03 Compliance with Trust Indenture Act................................................... 49
SECTION 9.04 Revocation and Effect of Consents..................................................... 49
SECTION 9.05 Notation on or Exchange of Securities................................................. 49
SECTION 9.06 Trustee to Sign Amendments, etc....................................................... 50
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Trust Indenture Act Controls.......................................................... 50
SECTION 10.02 Notices............................................................................... 50
SECTION 10.03 Communication by Holders with Other Holders........................................... 51
SECTION 10.04 Certificate and Opinion as to Conditions Precedent.................................... 52
SECTION 10.05 Statements Required in Certificate or Opinion......................................... 52
SECTION 10.06 Rules by Trustee and Agents........................................................... 52
SECTION 10.07 Legal Holidays........................................................................ 53
SECTION 10.08 No Recourse Against Others............................................................ 53
SECTION 10.09 Governing Law......................................................................... 53
SECTION 10.10 No Adverse Interpretation of Other Agreements......................................... 53
SECTION 10.11 Successors............................................................................ 53
SECTION 10.12 Severability.......................................................................... 53
SECTION 10.13 Counterpart Originals................................................................. 53
SECTION 10.14 Table of Contents, Headings, etc...................................................... 54
</TABLE>
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<PAGE> 6
INDENTURE dated as of _______________, 1999 between Conoco
Inc., a Delaware corporation (the "Company"), and ____________________, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued from time to time in one or more series as provided
in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Additional Amounts" means any additional amounts required by
the express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For purposes of this definition,
"control" of a Person shall mean the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Attributable Debt," when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the present
value (discounted at the rate set forth or implicit in the terms of the lease
included in such transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended). In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the net amount determined
assuming no such termination.
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal, state or foreign law for the relief of debtors.
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"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized, with respect to any particular
matter, to act by or on behalf of the Board of Directors of the Company.
"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 that is not a Legal Holiday.
"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; provided, however, that for
purposes of any provision contained herein which is required by the TIA,
"Company" shall also mean each other obligor (if any) on the Securities of a
series.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers of
the Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of
assets (after deducting applicable accumulated depreciation, depletion and
amortization and other reserves and other properly deductible items) less (1)
all current liabilities (excluding the amount of those liabilities which are by
their terms extendable or renewable at the option of the obligor to a date more
than 12 months after the date as of which the amount is being determined and
current maturities of long-term debt) and (2) all goodwill, tradenames,
trademarks, patents, unamortized debt discount and expense and other like
intangible assets, all as set forth on the most recent quarterly balance sheet
of the Company and its consolidated subsidiaries and determined in accordance
with GAAP.
"Corporate Trust Office of the Trustee" means the office of
the Trustee located at ____________________, and as may be located at such other
address as the Trustee may give notice to the Company.
"Debt" means all notes, bonds, debentures or other similar
evidences of debt for money borrowed.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
specified pursuant to Section 2.01 hereof as the initial Depositary with respect
to the Securities of such series, until a successor shall have been appointed
and become such pursuant to the applicable provision of this Indenture, and
thereafter "Depositary" shall mean or include such successor.
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<PAGE> 8
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Funded Debt" means all Debt (including Debt incurred under
any revolving credit, letter of credit or working capital facility) that matures
by its terms, or that is renewable at the option of any obligor thereon, to a
date more than one year after the date on which such Debt is originally
incurred.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect from
time to time.
"Global Security" means a Security that is issued in global
form in the name of the Depositary with respect thereto or its nominee.
"Government Obligations" means, with respect to a series of
Securities, direct obligations of the government that issues the currency in
which the Securities of the series are payable for the payment of which the full
faith and credit of such government is pledged, or obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of such
government, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such government.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this Indenture as amended or supplemented
from time to time, and includes the terms of a particular series of Securities
established as contemplated by Section 2.01.
"interest" means, with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable
after Maturity.
"Interest Payment Date," when used with respect to any
Security, shall have the meaning assigned to such term in the Security as
contemplated by Section 2.01.
"Issue Date" means, with respect to Securities of a series,
the date on which the Securities of such series are originally issued under this
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York, _______________,
Houston, Texas or a Place of Payment are authorized or obligated by law,
regulation or executive order to remain closed.
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<PAGE> 9
"Lien" means any mortgage, pledge, lien or security interest.
"Maturity" means, with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity
thereof, or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two
Officers of a Person.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02.
"Permitted Liens" means:
(i) Liens existing on the date of first issuance of a series
of Securities;
(ii) Liens on property or assets of, or any shares of stock
of, or other equity interests in, or Debt of, any Person existing at
the time such Person becomes a Subsidiary or a Principal Domestic
Subsidiary or at the time such Person is merged into or consolidated
with the Company or any Subsidiary or at the time of a sale, lease or
other disposition of the properties of a Person (or a division thereof)
as an entirety or substantially as an entirety to the Company or a
Subsidiary;
(iii) Liens on assets (including improvements and accessions
thereto and proceeds thereof) (a) existing at the time of acquisition
thereof, (b) securing all or any portion of the cost of acquiring,
constructing, improving, developing or expanding such assets or (c)
securing Debt incurred prior to, at the time of, or within 12 months
after, the later of the acquisition, the completion of construction,
improvement, development or expansion or the commencement of commercial
operation of such assets, for the purpose (in the case of this clause
(c)) of (x) financing all or any part of the purchase price of such
assets or (y) financing all or any part of the cost of construction,
improvement, development or expansion of any such assets;
(iv) Liens on specific assets to secure Debt incurred to
provide funds for all or any part of the cost of exploration, drilling
or development of such assets;
(v) Liens in favor of the Company or any Subsidiary;
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<PAGE> 10
(vi) Liens securing industrial development, pollution control
or other revenue bonds issued or guaranteed by the United States of
America, or any State, or any department, agency, instrumentality or
political subdivision of either;
(vii) statutory liens or landlords', carriers',
warehouseman's, mechanics', suppliers', materialmen's, repairmen's or
other like Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in good faith
by appropriate proceedings; and
(viii) any extensions, substitutions, replacements or
renewals in whole or in part of a Lien enumerated in clauses (i)
through (vii) above or any Debt secured by such a Lien; provided that
(a) such new Lien shall be limited to all or part of the same property
that secured the original Lien, plus improvements on such property, and
(b) the principal amount of Debt secured by such Lien and not otherwise
authorized by clauses (i) through (vii) above or otherwise permitted
does not materially exceed the principal amount of Debt so secured plus
any premium or fee payable in connection with any such extension,
substitution, replacement or renewal.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity of
any kind.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of, premium (if any) on and
interest on the Securities of that series are payable as specified in accordance
with Section 2.01 subject to the provisions of Section 4.02.
"principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on the Security.
"Principal Domestic Subsidiary" means any Subsidiary that has
substantially all of its assets located in the United States of America and that
owns a Principal Property.
"Principal Property" means any oil or gas producing property
located in the United States, onshore or offshore, or any refinery or
manufacturing plant (excluding any transportation or marketing facilities or
assets) located in the United States owned by the Company or a Principal
Domestic Subsidiary, except any oil or gas producing property, refinery or plant
that in the opinion of the Board of Directors is not of material importance to
the total business conducted by the Company and its consolidated subsidiaries.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
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<PAGE> 11
"Rule 144A Securities" means Securities of a series designated
pursuant to Section 2.01 as entitled to the benefits of Section 4.03(b).
"Sale/Leaseback Transaction" means any arrangement with any
Person pursuant to which the Company or any Subsidiary leases any Principal
Property that has been or is to be sold or transferred by the Company or such
Subsidiary to such Person, other than (1) temporary leases for a term, including
renewals at the option of the lessee, of not more than three years, (2) leases
between the Company and a Subsidiary or between Subsidiaries, (3) leases of
Principal Property executed by the time of, or within 12 months after the latest
of, the acquisition, the completion of construction or improvement, or the
commencement of commercial operation of the Principal Property, and (4)
arrangements pursuant to any provision of law with an effect similar to the
former Section 168(f)(8) of the Internal Revenue Code of 1954.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the preamble of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Custodian" means, with respect to Securities of a
series, the Trustee for Securities of such series, as custodian with respect to
the Securities of such series issued in global form, or any successor entity
thereto.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or interest thereon, the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock that ordinarily has voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa-77bbbb), as in effect on the date hereof.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the Person named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter "Trustee" means 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 means the Trustee with respect
to Securities of that series.
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<PAGE> 12
"United States" means the United States of America (including
the States and the District of Columbia) and its "possessions," which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien or foreign fiduciary of an estate or trust, or a
foreign partnership.
"U.S. Government Obligations" means Government Obligations
with respect to Securities payable in Dollars.
SECTION 1.02 Other Definitions.
<TABLE>
<CAPTION>
DEFINED
TERM IN SECTION
---- ----------
<S> <C>
"Bankruptcy Custodian"........................................................................... 6.01
"Conversion Event"............................................................................... 6.01
"covenant defeasance"............................................................................ 8.01
"Event of Default"............................................................................... 6.01
"Exchange Rate".................................................................................. 2.11
"Judgment Currency".............................................................................. 6.10
"legal defeasance"............................................................................... 8.01
"mandatory sinking fund payment"................................................................. 3.09
"optional sinking fund payment".................................................................. 3.09
"Paying Agent"................................................................................... 2.05
"Registrar"...................................................................................... 2.05
"Required Currency".............................................................................. 6.10
"Successor"...................................................................................... 5.01
</TABLE>
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
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<PAGE> 13
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) all references in this instrument to Articles and
Sections are references to the corresponding Articles
and Sections in and of this instrument.
ARTICLE II
THE SECURITIES
SECTION 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that 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, or
determined in the manner provided, in an Officers' Certificate or in a Company
Order, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series);
(2) if there is to be a limit, the limit upon the aggregate
principal amount of the Securities of the series that 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
Sections 2.08, 2.09, 2.12, 2.17, 3.07 or
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<PAGE> 14
9.05 and except for any Securities which, pursuant to Sections 2.04 or
2.17, are deemed never to have been authenticated and delivered
hereunder); provided, however, that unless otherwise provided in the
terms of the series, the authorized aggregate principal amount of such
series may be increased before or after the issuance of any Securities
of the series by a Board Resolution to such effect;
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, as Global
Securities or otherwise, and, if so, 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 provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global
Security or Securities of such series;
(4) the manner in which any interest payable on a temporary
Global Security on any Interest Payment Date will be paid if other than
in the manner provided in Section 2.14;
(5) the date or dates on which the principal of (and premium,
if any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the record date for the interest payable
on any Securities on any Interest Payment Date, or if other than
provided herein, the Person to whom any interest on Securities of the
series shall be payable;
(7) the place or places where, subject to the provisions of
Section 4.02, the principal, premium (if any), interest and any
Additional Amounts with respect to the Securities of the series shall
be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at which and the
terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company
must exercise any such option, if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series 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 (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid in whole or in part pursuant to such obligation;
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<PAGE> 15
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denomination in which any Securities of that
series shall be issuable;
(11) if other than Dollars, the currency or currencies
(including composite currencies) or the form, including equity
securities, other debt securities (including Securities), warrants or
any other securities or property of the Company or any other Person, in
which payment of the principal, premium (if any), interest and any
Additional Amounts with respect to the Securities of the series shall
be payable;
(12) if the principal of, premium (if any) or interest on or
any Additional Amounts with respect to the Securities of the series are
to be payable, at the election of the Company or a Holder thereof, in a
currency or currencies (including composite currencies) other than that
in which the Securities are stated to be payable, the currency or
currencies (including composite currencies) in which payment of the
principal, premium (if any), interest and any Additional Amounts with
respect to Securities of such series as to which such election is made
shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(13) if the amount of payments of principal, premium (if any),
interest and any Additional Amounts with respect to the Securities of
the series may be determined with reference to any commodities,
currencies or indices, values, rates or prices or any other index or
formula, the manner in which such amounts shall be determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.02;
(15) any additional means of satisfaction and discharge of
this Indenture and any additional conditions or limitations to
discharge with respect to Securities of the series pursuant to Article
VIII or any modifications of or deletions from such conditions or
limitations;
(16) any deletions or modifications of or additions to the
Events of Default set forth in Section 6.01 or covenants of the Company
set forth in Article IV pertaining to the Securities of the series;
(17) any restrictions or other provisions with respect to the
transfer or exchange of Securities of the series, which may amend,
supplement, modify or supersede those contained in this Article II;
(18) if the Securities of the series are to be convertible
into or exchangeable for capital stock, other debt securities
(including Securities), warrants, other equity securities or any other
securities or property of the Company or any other Person, at the
option of the Company or the Holder or upon the occurrence of any
condition or event, the terms and conditions for such conversion or
exchange;
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<PAGE> 16
(19) if the Securities of the series are to be entitled to the
benefit of Section 4.03(b) (and accordingly constitute Rule 144A
Securities); and
(20) any other terms of the series (which terms shall not be
prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
2.03) set forth, or determined in the manner provided, in the Officers'
Certificate or Company Order referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action, together with such Board Resolution, shall be set forth in an Officers'
Certificate or 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 or Company Order setting forth the terms of the series.
SECTION 2.02 Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 2.01. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.03 Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto. The Securities may have notations, legends or
endorsements required by law, securities exchange rule, the Company's
certificate of incorporation, bylaws or other similar governing documents,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company). A
copy of the Board Resolution establishing the form or forms of Securities of any
series shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.04 for the authentication and delivery
of such Securities.
The definitive Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the Officers executing such Securities, as
evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in
substantially the following form:
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<PAGE> 17
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
, as Trustee
-------------------------
By:
-------------------------------------
Authorized Officer".
SECTION 2.04 Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on
behalf of the Company by manual or facsimile signature. The Company's seal, if
any, shall be impressed, affixed, imprinted or reproduced on the Securities and
may be in facsimile form.
If an Officer of the Company whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the
Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture. Notwithstanding the foregoing, if any Security has been authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company delivers such Security to the Trustee for cancellation as provided in
Section 2.13, together with a written statement (which need not comply with
Section 10.05 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, and the Trustee shall
authenticate and deliver such Securities for original issue upon a Company Order
for the authentication and delivery of such Securities or pursuant to such
procedures acceptable to the Trustee as may be specified from time to time by
Company Order. Such order shall specify the amount of the Securities to be
authenticated, the date on which the original issue of Securities is to be
authenticated, the name or names of the initial Holder or Holders and any other
terms of the Securities of such series not otherwise determined. If provided for
in such procedures, such Company Order may authorize (1) authentication and
delivery of Securities of such series for original issue from time to time, with
certain terms (including, without limitation, the Maturity dates or dates,
original issue date or dates and interest rate or rates) that differ from
Security to Security and (2) may authorize authentication and delivery pursuant
to oral or electronic instructions from the Company or its duly authorized
agent, which instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Section 2.01, in authenticating such Securities,
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and accepting the additional responsibilities under this Indenture in relation
to such Securities, the Trustee shall be entitled to receive (in addition to the
Company Order referred to above and the other documents required by Section
10.04), and (subject to Section 7.01) shall be fully protected in relying upon,
(a) an Officers' Certificate setting forth the Board
Resolution and, if applicable, an appropriate record of any action
taken pursuant thereto, as contemplated by the last paragraph of
Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been
established in conformity with the provisions of this
Indenture; and
(iii) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws in
effect from time to time affecting the rights of creditors
generally, and the application of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate and
Opinion of Counsel at the time of issuance of each such Security, but such
Officers' Certificate and Opinion of Counsel shall be delivered at or before the
time of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture would
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
Each Security shall be dated the date of its authentication.
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SECTION 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each series
of Securities where Securities of such series may be presented for registration
of transfer or exchange ("Registrar") and an office or agency where Securities
of such series may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Securities of such series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.06 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on or any Additional
Amounts with respect to Securities and will notify the Trustee of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon payment over to the Trustee and upon accounting for any
funds disbursed, the Paying Agent (if other than the Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Each Paying Agent shall otherwise comply with TIA Section 317(b).
SECTION 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar with respect to a series of Securities, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date with respect to such series of Securities, and at such other times
as the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require of the names and addresses of Holders of
such series, and the Company shall otherwise comply with TIA Section 312(a).
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SECTION 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided
pursuant to Section 2.01:
When Securities of any series are presented to the Registrar
with the request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of the same series of
like tenor and of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for such transactions are met; provided, however,
that the Securities presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form reasonably satisfactory to the Registrar duly executed by the
Holder thereof or by his attorney, duly authorized in writing, on which
instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's written request and submission of the Securities or Global
Securities. No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 2.12, 3.07 or 9.05). The Trustee shall authenticate Securities in
accordance with the provisions of Section 2.04. Notwithstanding any other
provisions of this Indenture to the contrary, the Company shall not be required
to register the transfer or exchange of (a) any Security selected for redemption
in whole or in part pursuant to Article III, except the unredeemed portion of
any Security being redeemed in part or (b) any Security during the period
beginning 15 Business Days before the mailing of notice of any offer to
repurchase Securities of the series required pursuant to the terms thereof or of
redemption of Securities of a series to be redeemed and ending at the close of
business on the date of mailing.
SECTION 2.09 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if
the Holder of a Security claims that the Security has been destroyed, lost or
stolen and the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of such Security, the Company shall issue and the
Trustee shall authenticate a replacement Security of the same series if the
Trustee's requirements are met. If any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security. If
required by the Trustee or the Company, such Holder must furnish an indemnity
bond that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from any
loss that any of them may suffer if a Security is replaced. The Company and the
Trustee may charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
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SECTION 2.10 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee hereunder and those described in this Section 2.10 as
not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid
under Section 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury
Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, (a) the principal amount of an Original Issue Discount
Security shall be the principal amount thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 6.02, (b) the principal amount of a Security denominated in
a foreign currency shall be the Dollar equivalent, as determined by the Company
by reference to the noon buying rate in The City of New York for cable transfers
for such currency, as such rate is certified for customs purposes by the Federal
Reserve Bank of New York (the "Exchange Rate") on the date of original issuance
of such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent, as determined by the Company by
reference to the Exchange Rate on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded,
except that, for the purpose of determining whether the Trustee shall be
protected in relying upon any such direction, amendment, supplement, waiver or
consent, only Securities that the Trustee actually knows are so owned shall be
so disregarded.
SECTION 2.12 Temporary Securities.
Until definitive Securities of any series are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities.
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Until so exchanged, the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
SECTION 2.13 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for registration of transfer,
exchange, payment or redemption or for credit against any sinking fund payment.
The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, redemption, replacement or cancellation or for
credit against any sinking fund. Unless the Company shall direct in writing that
canceled Securities be returned to it, after written notice to the Company all
canceled Securities held by the Trustee shall be disposed of in accordance with
the usual disposal procedures of the Trustee, and the Trustee shall maintain a
record of their disposal. The Company may not issue new Securities to replace
Securities that have been paid or that have been delivered to the Trustee for
cancellation.
SECTION 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01,
interest (except defaulted interest) on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Persons who are registered Holders of that Security at the close of
business on the record date next preceding such Interest Payment Date, even if
such Securities are canceled after such record date and on or before such
Interest Payment Date. The Holder must surrender this Security to a Paying Agent
to collect principal payments. Unless otherwise provided with respect to the
Securities of any series, the Company will pay the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities
in Dollars. Such amounts shall be payable at the offices of the Trustee,
provided that at the option of the Company, the Company may, however, pay such
amounts (1) by wire transfer with respect to Global Securities or (2) by check
payable in such money mailed to a Holder's registered address with respect to
any Securities.
If the Company defaults in a payment of interest on the
Securities, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest on the defaulted interest, in each case at the rate
provided in the Securities and in Section 4.01. The Company may pay the
defaulted interest to the Persons who are Holders on a subsequent special record
date. At least 15 days before any special record date selected by the Company,
the Company (or the Trustee, in the name of and at the expense of the Company
upon 20 days' prior written notice from the Company setting forth such record
date and the interest amount to be paid) shall mail to Holders a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.15 Persons Deemed Owners.
The Company, the Trustee, any Agent and any authenticating
agent may treat the Person in whose name any Security is registered as the owner
of such Security for the purpose of receiving payments of principal of, premium
(if any) or interest on, or any Additional Amounts with
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respect to such Security and for all other purposes. None of the Company, the
Trustee, any Agent or any authenticating agent shall be affected by any notice
to the contrary.
SECTION 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
SECTION 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a
Global Security, as contemplated by Section 2.01, then, notwithstanding clause
(10) of Section 2.01 and the provisions of Section 2.02, any such Global
Security shall represent such of the outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges or
redemptions. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee (i) in such manner and upon instructions
given by such Person or Persons as shall be specified in such Security or in a
Company Order to be delivered to the Trustee pursuant to Section 2.04 or (ii)
otherwise in accordance with written instructions or such other written form of
instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest
in such Global Security. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.12, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the Person
or Persons specified in such Security or in the applicable Company Order. With
respect to the Securities of any series that are represented by a Global
Security, the Company authorizes the execution and delivery by the Trustee of a
letter of representations or other similar agreement or instrument in the form
customarily provided for by the Depositary appointed with respect to such Global
Security. Any Global Security may be deposited with the Depositary or its
nominee, or may remain in the custody of the Trustee or the Security Custodian
therefor pursuant to a FAST Balance Certificate Agreement or similar agreement
between the Trustee and the Depositary. If a Company Order has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 10.05 and need not be accompanied by an
Opinion of Counsel.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee or the Security
Custodian as its custodian, or under such Global Security and the Depositary may
be treated by the Company, the Trustee or the Security Custodian and any agent
of the Company, the Trustee or the Security Custodian as the absolute owner of
such Global Security for all purposes whatsoever. Notwithstanding the foregoing,
(i) the registered holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members
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and Persons that may hold interests through Agent Members, to take any action
that a Holder is entitled to take under this Indenture or the Securities and
(ii) nothing herein shall prevent the Company, the Trustee or the Security
Custodian, or any agent of the Company, the Trustee or the Security Custodian,
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its
Agent Members, the operation of customary practices governing the exercise of
the rights of a beneficial owner of any Security.
Notwithstanding Section 2.08, and except as otherwise provided
pursuant to Section 2.01: Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary. Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security if, and only if,
either (1) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Security and a successor Depositary is not
appointed by the Company within 90 days of such notice, (2) an Event of Default
has occurred with respect to such series and is continuing and the Registrar has
received a request from the Depositary to issue Securities in lieu of all or a
portion of the Global Security (in which case the Company shall deliver
Securities within 30 days of such request) or (3) the Company determines not to
have the Securities represented by a Global Security.
In connection with any transfer of a portion of the beneficial
interest in a Global Security to beneficial owners pursuant to this Section
2.17, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Global Security in an amount equal to
the principal amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee upon receipt of a
Company Order for the authentication and delivery of Securities shall
authenticate and deliver, one or more Securities of the same series of like
tenor and amount.
In connection with the transfer of all the beneficial interest
in a Global Security to beneficial owners pursuant to this Section 2.17, the
Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the Global Security, an equal aggregate principal
amount of Securities of authorized denominations.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities by the Depositary, or for maintaining,
supervising or reviewing any records of the Depositary relating to such
Securities. Neither the Company nor the Trustee shall be liable for any delay by
the related Global Security Holder or the Depositary in identifying the
beneficial owners, and each such Person may conclusively rely on, and shall be
protected in relying on, instructions from such Global Security Holder or the
Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be issued).
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The provisions of the last sentence of the third paragraph of
Section 2.04 shall apply to any Global Security if such Global Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Global Security together with written instructions (which need not comply with
Section 10.05 and need not be accompanied by an Opinion of Counsel) with regard
to the cancellation or reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14,
unless otherwise specified as contemplated by Section 2.01, payment of principal
of, premium (if any) and interest on and any Additional Amounts with respect to
any Global Security shall be made to the Person or Persons specified therein.
ARTICLE III
REDEMPTION
SECTION 3.01 Applicability of Article.
Securities of any series that are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
SECTION 3.02 Notice to the Trustee.
If the Company elects to redeem Securities of any series
pursuant to this Indenture, it shall notify the Trustee of the Redemption Date
and principal amount of Securities of such series to be redeemed. The Company
shall so notify the Trustee at least 45 days before the Redemption Date (unless
a shorter notice shall be satisfactory to the Trustee) by delivering to the
Trustee an Officers' Certificate stating that such redemption will comply with
the provisions of this Indenture and of the Securities of such series. Any such
notice may be canceled at any time prior to the mailing of such notice of such
redemption to any Holder and shall thereupon be void and of no effect.
SECTION 3.03 Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the outstanding
Securities of such series not previously called for redemption, either pro rata,
by lot or by such other method as the Trustee shall deem fair and appropriate
and that may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series or of the principal amount of Global Securities of such series.
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The Trustee shall promptly notify the Company and the
Registrar 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 purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any of the Securities redeemed or to be redeemed only in part, to
the portion of the principal amount thereof which has been or is to be redeemed.
SECTION 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at the address of
such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date, and the only remaining right of the
Holders of such Securities is to receive payment of the Redemption
Price upon surrender to the Paying Agent of the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of
the principal amount thereof to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such Security to
the Paying Agent, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued
without charge to the Holder;
(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price and the name and
address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if
such is the case; and
(7) the CUSIP number, if any, relating to such Securities.
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
written request, by the Trustee in the name and at the expense of the Company.
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SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Securities called for redemption
shall be paid at the Redemption Price, but interest installments whose maturity
is on or prior to such Redemption Date will be payable on the relevant Interest
Payment Dates to the Holders of record at the close of business on the relevant
record dates specified pursuant to Section 2.01.
SECTION 3.06 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 2.06) an amount
of money in same day funds 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 to, the Securities or
portions thereof which are to be redeemed on that date, other than Securities or
portions thereof called for redemption on that date which have been delivered by
the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, interest on
the Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment, and
the Holders of such Securities shall have no further rights with respect to such
Securities except for the right to receive the Redemption Price upon surrender
of such Securities. If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal, premium, if any, any
Additional Amounts, and, to the extent lawful, accrued interest thereon shall,
until paid, bear interest from the Redemption Date at the rate specified
pursuant to Section 2.01 or provided in the Securities or, in the case of
Original Issue Discount Securities, such Securities' yield to maturity.
SECTION 3.07 Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security to be
redeemed in part, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge a new Security
or Securities, of the same series and of 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 that
is not redeemed.
SECTION 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01,
the Company and any Affiliate of the Company may at any time purchase or
otherwise acquire Securities in the open market or by private agreement. Such
acquisition shall not operate as or be deemed for any purpose to be a redemption
of the indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery,
the indebtedness
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represented thereby shall be deemed to be satisfied. Section 2.13 shall apply to
all Securities so delivered.
SECTION 3.09 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." Unless otherwise provided 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 3.10. 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 and by this Article III.
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.
The Company may deliver outstanding Securities of a series
(other than any previously called for redemption) and may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such series of Securities; provided that such
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.
SECTION 3.11 Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to
Section 3.10 and will also deliver to the Trustee any Securities to be so
delivered. Failure of the Company to timely deliver such Officers' Certificate
and Securities specified in this paragraph, if any, shall not constitute a
default but shall constitute the election of the Company (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof and (ii) that the Company
will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $100,000 (or the Dollar equivalent thereof based
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on the applicable Exchange Rate on the date of original issue of the applicable
Securities) or a lesser sum if the Company shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $100,000 (or the Dollar
equivalent thereof as aforesaid) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $100,000 (or the Dollar
equivalent thereof as aforesaid) is available. 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
3.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall pay the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of each
series on the dates and in the manner provided in the Securities of such series
and in this Indenture. Principal, premium, interest and any Additional Amounts
shall be considered paid on the date due if the Paying Agent, other than the
Company or a Subsidiary of the Company, holds on that date money deposited by
the Company designated for and sufficient to pay all principal, premium (if
any), interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium (if any), at a rate equal to the then applicable interest rate on the
Securities to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and any Additional Amount (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency (which may be an office of the Trustee,
the Registrar or the Paying Agent) where Securities of that series may be
presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. Unless otherwise designated by the Company by written notice to the
Trustee, such office or agency shall be the office of the Trustee in The City of
New York, which on the date hereof, is located at ____________________. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the
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address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
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.
SECTION 4.03 SEC Reports; Financial Statements.
(a) The Company shall file with the Trustee, within 15 days
after it files the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Company shall also comply with the provisions of TIA Section
314(a).
(b) If the Company is not subject to the requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall furnish to all
Holders of Rule 144A Securities and prospective purchasers of Rule 144A
Securities designated by the Holders of Rule 144A Securities, promptly upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) promulgated under the Securities Act of 1933, as amended.
SECTION 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a statement signed by an
Officer of the Company, which need not constitute an Officers' Certificate,
complying with TIA Section 314(a)(4) and stating that in the course of
performance by the signing Officer of the Company of his duties as such Officer
of the Company he would normally obtain knowledge of the keeping, observing,
performing and fulfilling by the Company of its obligations under this
Indenture, and further stating that to the best of his knowledge the Company has
kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or observance of any of
the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which such Officer may have knowledge and what action the Company is taking
or proposes to take with respect thereto).
(b) The Company shall, so long as Securities of any series are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company
becoming aware of any Default or Event of Default under this Indenture, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
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SECTION 4.05 Corporate Existence.
Subject to Article V hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate existence of each of its Subsidiaries and
all rights (charter and statutory) and franchises of the Company and its
Subsidiaries, provided that the Company shall not be required to preserve the
corporate existence of any Subsidiary of the Company or any such right or
franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole and that the loss thereof would not have a
material adverse effect on the business, prospects, assets or financial
condition of the Company and its Subsidiaries taken as a whole and would not
have any material adverse effect on the payment and performance of the
obligations of the Company under the Securities and this Indenture.
SECTION 4.06 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 or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Company 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.
SECTION 4.07 Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or the net proceeds received from 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 4.07 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 4.07 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.
Unless otherwise provided pursuant to Section 2.01 with
respect to Securities of any series: If the Securities of a series provide for
the payment of Additional Amounts, at least ten days prior to the first Interest
Payment Date with respect to that series of Securities (or if the Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at least ten days prior to
each date of payment of principal and any premium or interest if there has been
any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company shall furnish the Trustee and the Company's
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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 of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
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 and the Company will pay to such
Paying Agent the Additional Amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for and to hold them
harmless against any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 4.07.
SECTION 4.08 Limitation on Liens.
The Company shall not, and shall not permit any Principal
Domestic Subsidiary to, issue, assume or guarantee any Debt for borrowed money
secured by any Lien upon any Principal Property or any shares of stock or Debt
of any Principal Domestic Subsidiary (whether such Principal Property, shares of
stock or Debt is now owned or hereafter acquired) without making effective
provision whereby the Securities (together with, if the Company shall so
determine, any other Debt or other obligation of the Company or any Subsidiary)
shall be secured equally and ratably with (or, at the option of the Company,
prior to) the Debt so secured for so long as such Debt is so secured. The
foregoing restrictions will not, however, apply to Debt secured by Permitted
Liens.
In addition, the Company and its Principal Domestic
Subsidiaries may, without securing the Securities, issue, assume or guarantee
Debt that would otherwise be subject to the foregoing restrictions in an
aggregate principal amount that, together with all other such Debt of the
Company and its Principal Domestic Subsidiaries that would otherwise be subject
to the foregoing restrictions (not including Debt permitted to be secured under
the definition of Permitted Liens) and the aggregate amount of Attributable Debt
deemed outstanding with respect to Sale/Leaseback Transactions (reduced by the
amount applied pursuant to Section 4.09(b)) does not at any one time exceed 10%
of Consolidated Net Tangible Assets.
The following types of transactions shall not be deemed to
create "Debt" secured by "Liens" within the meaning of those terms as used in
this Indenture:
(a) the sale or other transfer of (i) oil, gas or other
minerals in place for a period of time until, or in an amount such
that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such minerals, or (ii)
any other interest in property of the character commonly referred to as
a "production payment"; and
(b) the mortgage or pledge of any property of the Company or
any Subsidiary in favor of the United States of America, or any State,
or any department, agency,
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instrumentality or political subdivision of either, to secure partial,
progress, advance or other payments pursuant to the provisions of any
contract or statute.
SECTION 4.09 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Principal
Domestic Subsidiary to, enter into any Sale/Leaseback Transaction with any
Person (other than the Company or a Subsidiary) unless:
(a) the Company or such Principal Domestic Subsidiary would be
entitled to incur Debt in a principal amount equal to the Attributable
Debt with respect to such Sale/Leaseback Transaction secured by a Lien
on the property subject to such Sale/Leaseback Transaction pursuant to
Section 4.08 without equally and ratably securing the Securities
pursuant to such covenant; or
(b) within a period commencing six months prior to the
consummation of such Sale/Leaseback Transaction and ending six months
after the consummation thereof, the Company or any Subsidiary shall
have applied an amount equal to all or a portion of the net proceeds of
such Sale/Leaseback Transaction (with any such amount not being so
applied to be subject to Section 4.09(a)):
(1) to the voluntary defeasance or retirement of any
Securities or any Funded Debt; or
(2) to the acquisition, exploration, drilling,
development, construction, improvement or expansion of one or
more Principal Properties.
For these purposes, the net proceeds of a Sale/Leaseback
Transaction means an amount equal to the greater of (i) the net proceeds of the
sale or transfer of the property leased in such Sale/Leaseback Transaction and
(ii) the fair value, as determined by the Board of Directors and evidenced by a
Board Resolution, of such property at the time of entering into such
Sale/Leaseback Transaction (in either case adjusted to reflect the remaining
term of the lease).
ARTICLE V
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations.
The Company shall not, in any transaction or series of
transactions, consolidate with or merge into any Person, or sell, lease, convey,
transfer or otherwise dispose of all or substantially all of its assets to any
Person, unless:
(1) either (a) the Company shall be the continuing corporation
or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is
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merged, or to which such sale, lease, conveyance, transfer or other
disposition shall be made (collectively, the "Successor"), is organized
and validly existing under the laws of the United States, any political
subdivision thereof or any State thereof or the District of Columbia,
and expressly assumes by supplemental indenture the due and punctual
payment of the principal of (and premium, if any) and interest on and
Additional Amounts with respect to all the Securities and the
performance of the Company's covenants and obligations under this
Indenture and the Securities;
(2) immediately after giving effect to such transaction or
series of transactions, no Default or Event of Default shall have
occurred and be continuing or would result therefrom; and
(3) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the
transaction and such supplemental indenture comply with this Indenture.
SECTION 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or any sale,
lease, conveyance, transfer or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01, the Successor formed
by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of
the Company under this Indenture and the Securities with the same effect as if
such Successor had been named as the Company herein and the predecessor Company,
in the case of a sale, conveyance, transfer or other disposition, shall be
released from all obligations under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Unless either inapplicable to a particular series or
specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution establishing such series of Securities or in the form of
Security for such series, an "Event of Default," wherever used herein with
respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest
on or any Additional Amounts with respect to any Security of that
series when the same becomes due and payable and such default continues
for a period of 30 days;
(2) the Company defaults in the payment of (A) the
principal of any Security of that series at its Maturity or (B) premium
(if any) on any Security of that series when the same becomes due and
payable;
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(3) the Company defaults in the deposit of any
sinking fund payment, when and as due by the terms of a Security of
that series;
(4) the Company fails to comply with any of its other
covenants or agreements in, or provisions of, the Securities of such
series or this Indenture (other than an agreement, covenant or
provision that has expressly been included in this Indenture solely for
the benefit of one or more series of Securities other than that series)
which shall not have been remedied within the specified period after
written notice, as specified in the last paragraph of this Section
6.01;
(5) the Company pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or substantially all of its
property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that remains unstayed and in effect
for 90 days and that:
(A) is for relief against the Company as debtor in an
involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or
a Bankruptcy Custodian for all or substantially all of the
property of the Company, or
(C) orders the liquidation of the Company; or
(7) any other Event of Default provided with respect
to Securities of that series occurs.
The term "Bankruptcy Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of a
Default unless a Trust Officer at the Corporate Trust Office of the Trustee
receives written notice at the Corporate Trust Office of the Trustee of such
Default with specific reference to such Default.
When a Default is cured, it ceases.
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Notwithstanding the foregoing provisions of this Section 6.01,
if the principal of, premium (if any) or interest on or Additional Amounts with
respect to any Security is payable in a currency or currencies (including a
composite currency) other than Dollars and such currency or currencies are not
available to the Company for making payment thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company (a
"Conversion Event"), the Company will be entitled to satisfy its obligations to
Holders of the Securities by making such payment in Dollars in an amount equal
to the Dollar equivalent of the amount payable in such other currency, as
determined by the Company by reference to the Exchange Rate on the date of such
payment, or, if such rate is not then available, on the basis of the most
recently available Exchange Rate. Notwithstanding the foregoing provisions of
this Section 6.01, any payment made under such circumstances in Dollars where
the required payment is in a currency other than Dollars will not constitute an
Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event, the
Company shall give written notice thereof to the Trustee; and the Trustee,
promptly after receipt of such notice, shall give notice thereof in the manner
provided in Section 10.02 to the Holders. Promptly after the making of any
payment in Dollars as a result of a Conversion Event, the Company shall give
notice in the manner provided in Section 10.02 to the Holders, setting forth the
applicable Exchange Rate and describing the calculation of such payments.
A Default under clause (4) or (7) of this Section 6.01 is not
an Event of Default until the Trustee notifies the Company, or the Holders of at
least 25% in principal amount of the then outstanding Securities of the series
affected by such Default (or, in the case of a Default under clause (4) of this
Section 6.01, if outstanding Securities of other series are affected by such
Default, then at least 25% in principal amount of the then outstanding
Securities so affected) notify the Company and the Trustee, of the Default, and
the Company fails to cure the Default within 90 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
SECTION 6.02 Acceleration.
If an Event of Default with respect to any Securities of any
series at the time outstanding (other than an Event of Default specified in
clause (5) or (6) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of the
then outstanding Securities of the series affected by such default (or, in the
case of an Event of Default described in clause (4) of Section 6.01, if
outstanding Securities of other series are affected by such Default, then at
least 25% in principal amount of the then outstanding Securities so affected) by
notice to the Company and the Trustee, may declare the principal of (or, if any
such Securities are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) and all
accrued and unpaid interest on all then outstanding Securities of such series or
of all series, as the case may be, to be due and payable. Upon any such
declaration the amounts due and payable on the Securities shall be due and
payable immediately. If an Event of Default specified in clause (5) or (6) of
Section 6.01 hereof occurs, such amounts shall ipso facto become and be
immediately due and payable without any declaration, notice or other act on the
part of the Trustee or any Holder. The Holders of a majority in principal amount
of the then
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outstanding Securities of the series affected by such default or all series, as
the case may be, by written notice to the Trustee may rescind an acceleration
and its consequences (other than nonpayment of principal of or premium or
interest on or any Additional Amounts with respect to the Securities) if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default with respect to Securities of that series (or of all series,
as the case may be) have been cured or waived, except nonpayment of principal,
premium, interest or any Additional Amounts that has become due solely because
of the acceleration.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of, or
premium, if any, or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the then outstanding Securities of any series or of all
series (acting as one class) by notice to the Trustee may waive an existing or
past Default or Event of Default with respect to such series or all series, as
the case may be, and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series or all
series or a solicitation of consents in respect of Securities of such series or
all series, provided that in each case such offer or solicitation is made to all
Holders of then outstanding Securities of such series or all series (but the
terms of such offer or solicitation may vary from series to series)), except (1)
a continuing Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on or any Additional Amounts with respect to any
Security or (2) a continued Default in respect of a provision that under Section
9.02 cannot be amended or supplemented without the consent of each Holder
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 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a
majority in principal amount of the then outstanding Securities of such series
may direct in writing the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 6.01, and with respect to all Securities,
the Holders of a majority in principal amount of all the then outstanding
Securities affected may direct in writing the time, method and
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place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it not relating to or arising under
such an Event of Default. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders, or that may
involve the Trustee in personal liability; provided, however, that the Trustee
may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion from
Holders directing the Trustee against all losses and expenses caused by taking
or not taking such action.
SECTION 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any
series may pursue a remedy with respect to this Indenture or the Securities of
such series only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of the
then outstanding Securities of such series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal of and
premium, if any, and interest on and any Additional Amounts with respect to the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of
Section 6.01 hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an
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express trust against the Company for the amount of principal, premium (if any),
interest and any Additional Amounts remaining unpaid on the Securities of the
series affected by the Event of Default, and interest on overdue principal and
premium, if any, and, to the extent lawful, interest on overdue interest, and
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.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents and to take such actions, including participating as a
member, voting or otherwise, of any committee of creditors, as may be necessary
or advisable to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company or its creditors or properties and shall be entitled and
empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any Bankruptcy Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties which the Holders of the Securities may
be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities in respect of which or for the benefit of which such money
has been collected, for principal, premium (if any), interest and any
Additional Amounts ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium (if any), interest and any Additional Amounts,
respectively; and
Third: to the Company.
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The Trustee, upon prior written notice to the Company, may fix
record dates and payment dates for any payment to Holders pursuant to this
Article VI.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining a judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of, premium (if any) or
interest on or Additional Amounts with respect to the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Business Day next preceding that on which final judgment is given. Neither
the Company nor the Trustee shall be liable for any shortfall nor shall it
benefit from any windfall in payments to Holders of Securities under this
Section 6.10 caused by a change in exchange rates between the time the amount of
a judgment against it is calculated as above and the time the Trustee converts
the Judgment Currency into the Required Currency to make payments under this
Section to Holders of Securities, but payment of such judgment shall discharge
all amounts owed by the Company on the claim or claims underlying such judgment.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If 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 such exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default with
respect to the Securities of any series:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
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(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 furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine such certificates
and opinions to determine whether, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section
7.01(b);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives indemnity
reasonably satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. All money received by the Trustee shall,
until applied as herein provided, be held in trust for the payment of the
principal of, premium (if any) and interest on and Additional Amounts with
respect to the Securities.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require instruction, an Officers' Certificate or an Opinion of Counsel or both
to be provided. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such instruction, Officers' Certificate or
Opinion of Counsel. The Trustee may consult at the Company's expense with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
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(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
SECTION 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any of its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights and duties. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities or any money paid to the
Company or upon the Company's direction under any provision hereof, it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee and it shall not be responsible for any statement
or recital herein or any statement in the Securities other than its certificate
of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and it is known to the
Trustee, the Trustee shall mail to Holders of Securities of such series a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium (if
any) and interest on and Additional Amounts or any sinking fund installment with
respect to the Securities of such series, the Trustee may withhold the notice if
and so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Holders of Securities of such
series.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15 of each year after the
execution of this Indenture, the Trustee shall mail to Holders of a series and
the Company a brief report dated as of such reporting date that complies with
TIA Section 313(a); provided, however, that if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date with
respect to a series, no report need be transmitted to Holders of such series.
The Trustee also shall comply with TIA Section 313(b). The Trustee shall also
transmit by mail all reports if and as required by TIA Sections 313(c) and
313(d).
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A copy of each report at the time of its mailing to Holders of
a series of Securities shall be filed by the Company with the SEC and each
securities exchange, if any, on which the Securities of such series are listed.
The Company shall notify the Trustee if and when any series of Securities is
listed on any stock exchange.
SECTION 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company agrees to reimburse
the Trustee upon request for all reasonable disbursements, advances and expenses
incurred by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company hereby indemnifies the Trustee against any loss,
liability or expense incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, except as set
forth in the next paragraph. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.
The Company shall not be obligated to reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the payment obligations of the Company in this
Section 7.07, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
principal of, premium (if any) and interest on and any Additional Amounts with
respect to Securities of series. Such lien and the indemnity obligation under
this Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be discharged at any time with
respect to the Securities of one or more series by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Securities of
any series may remove the Trustee with respect to the Securities
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of such series by so notifying the Trustee and the Company. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to the Securities of one or
more series, the Company 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). Within one
year after the successor Trustee with respect to the Securities of any series
takes office, the Holders of a majority in principal amount of the Securities of
such series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee with respect to the Securities of any
series does not take office within 60 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the then outstanding Securities of such series may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
If the Trustee with respect to the Securities of a series
fails to comply with Section 7.10, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the Securities of such
series.
In case of the appointment of a successor Trustee with respect
to all Securities, each such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the retiring Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.07.
In case of the appointment 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
(but not all) series shall execute and deliver an indenture
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supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights,
powers 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
confirm that all the rights, powers 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. Nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, and 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. Upon
the execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee shall have all the rights, powers 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. On request of
the Company or any successor Trustee, such retiring Trustee shall transfer to
such successor Trustee all property held by such retiring Trustee as Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
Notwithstanding replacement of the Trustee or Trustees
pursuant to this Section 7.08, the obligations of the Company under Section 7.07
shall continue for the benefit of the retiring Trustee or Trustees.
SECTION 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
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; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia and authorized under such laws to
exercise corporate trust power, shall be subject to supervision or examination
by Federal or State (or the District of Columbia) authority and shall have, or
be a
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Subsidiary of a bank or bank holding company having, a combined capital and
surplus of at least $50 million as set forth in its most recent published annual
report of condition.
The Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to and shall comply with the provisions
of TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of Company's Obligations.
(a) This Indenture shall cease to be of further effect with
respect to the Securities of a series (except that the Company's obligations
under Section 7.07, the Trustee's and Paying Agent's obligations under Section
8.03 and the rights, powers, protections and privileges accorded the Trustee
under Article VII shall survive), and the Trustee, on demand of the Company,
shall execute proper instruments acknowledging the satisfaction and discharge of
this Indenture with respect to the Securities of such series, when:
(1) either
(A) all outstanding Securities of such series
theretofore authenticated and issued (other than destroyed,
lost or stolen Securities that have been replaced or paid)
have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
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and, in the case of clause (i), (ii) or (iii) above, the
Company has irrevocably deposited or caused to be deposited
with the Trustee as funds (immediately available to the
Holders in the case of clause (i)) in trust for such purpose
(x) cash in an amount, or (y) Government Obligations, maturing
as to principal and interest at such times and in such amounts
as will ensure the availability of cash in an amount or (z) a
combination thereof, which will be sufficient, in the opinion
of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the entire
indebtedness on the Securities of such series for principal
and interest to the date of such deposit (in the case of
Securities which have become due and payable) or for
principal, premium, if any, and interest to the Stated
Maturity or Redemption Date, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 2.01, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable by it hereunder with respect to the Securities of such series;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being
applicable to Securities of a series as contemplated by Section 2.01, the
Company may terminate certain of its obligations under this Indenture ("covenant
defeasance") with respect to the Securities of a series if:
(1) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for and dedicated solely to the benefit of the Holders of
Securities of such series, (i) money in the currency in which payment
of the Securities of such series is to be made in an amount, or (ii)
Government Obligations with respect to such series, maturing as to
principal and interest at such times and in such amounts as will ensure
the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a
combination thereof, that is sufficient, in the opinion (in the case of
(ii) and (iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay, without consideration of the reinvestment of any
such amounts and after payment of all taxes or other charges or
assessments in respect thereof payable by the Trustee, the principal of
and premium (if any) and interest on all Securities of such series on
each date that such principal, premium (if any) or interest is due and
payable and (at the Stated Maturity thereof or upon redemption as
provided in Section 8.01(e)) to pay all other sums payable by it
hereunder;
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provided that the Trustee shall have been irrevocably instructed to
apply such money and/or the proceeds of such Government Obligations to
the payment of said principal, premium (if any) and interest with
respect to the Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel from a nationally recognized counsel acceptable to the
Trustee or a tax ruling to the effect that the Holders will not
recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section
8.01(b) and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the
case if such option had not been exercised;
(5) the Company has complied with any additional conditions
specified pursuant to Section 2.01 to be applicable to the discharge of
Securities of such series pursuant to this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b).
In such event, this Indenture shall cease to be of further
effect (except as set forth in this paragraph), and the Trustee, on demand of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge under this Indenture. However, the Company's obligations in Sections
2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 5.01, 7.07, 7.08 and 8.04, the
Trustee's and Paying Agent's obligations in Section 8.03 and the rights, powers,
protections and privileges accorded the Trustee under Article VII shall survive
until all Securities of such series are no longer outstanding. Thereafter, only
the Company's obligations in Section 7.07 and the Trustee's and Paying Agent's
obligations in Section 8.03 shall survive with respect to Securities of such
series.
After such irrevocable deposit made pursuant to this Section
8.01(b) and satisfaction of the other conditions set forth herein, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
In order to have money available on a payment date to pay
principal of or premium (if any) or interest on the Securities, the Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the issuer's option.
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(c) If the Company has previously complied or is concurrently
complying with Section 8.01(b) (other than any additional conditions specified
pursuant to Section 2.01 that are expressly applicable only to covenant
defeasance) with respect to Securities of a series, then, unless this Section
8.01(c) is specified as not being applicable to Securities of such series as
contemplated by Section 2.01, the Company may elect to be discharged ("legal
defeasance") from its obligations to make payments with respect to Securities of
such series, if:
(1) no Default or Event of Default under clauses (5) and (6)
of Section 6.01 hereof shall have occurred at any time during the
period ending on the 91st day after the date of deposit contemplated by
Section 8.01(b) (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of
such series as contemplated by Section 2.01, the Company has delivered
to the Trustee an Opinion of Counsel from a nationally recognized
counsel acceptable to the Trustee to the effect referred to in Section
8.01(b)(4) with respect to such legal defeasance, which opinion is
based on (i) a private ruling of the Internal Revenue Service addressed
to the Company, (ii) a published ruling of the Internal Revenue Service
or (iii) a change in the applicable federal income tax law (including
regulations) after the date of this Indenture;
(3) the Company has complied with any other conditions
specified pursuant to Section 2.01 to be applicable to the legal
defeasance of Securities of such series pursuant to this Section
8.01(c); and
(4) the Company has delivered to the Trustee a Company Request
requesting such legal defeasance of the Securities of such series and
an Officers' Certificate stating that all conditions precedent with
respect to such legal defeasance of the Securities of such series have
been complied with, together with an Opinion of Counsel to the same
effect.
In such event, the Company will be discharged from its
obligations under this Indenture and the Securities of such series to pay
principal of, premium (if any) and interest on, and any Additional Amounts with
respect to, Securities of such series, the Company's obligations under Sections
4.01, 4.02 and 5.01 shall terminate with respect to such Securities, and the
entire indebtedness of the Company evidenced by such Securities shall be deemed
paid and discharged.
(d) If and to the extent additional or alternative means of
satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to such series as contemplated by Section 2.01, the Company may
terminate any or all of its obligations under this Indenture with respect to
Securities of a series and any or all of its obligations under the Securities of
such series if it fulfills such other means of satisfaction and discharge as may
be so specified, as contemplated by Section 2.01, to be applicable to the
Securities of such series.
(e) If Securities of any series subject to subsections (a),
(b), (c) or (d) of this Section 8.01 are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund provisions, the
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terms of the applicable trust arrangement shall provide for such redemption, and
the Company shall make such arrangements as are reasonably satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
SECTION 8.02 Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the
Company shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01 hereof. It shall apply the deposited money and the
money from Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of the
series with respect to which the deposit was made.
SECTION 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the
Company upon written request any excess money or Government Obligations (or
proceeds therefrom) held by them at any time upon the written request of the
Company.
Subject to the requirements of any applicable abandoned
property laws, the Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal, premium (if
any), interest or any Additional Amounts that remains unclaimed for two years
after the date upon which such payment shall have become due. After payment to
the Company, Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another Person, and all liability of the Trustee and the Paying Agent with
respect to such money shall cease.
SECTION 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money or Government Obligations deposited with respect to Securities of any
series in accordance with Section 8.01 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture with respect to the Securities
of such series and under the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until such
time as the Trustee or the Paying Agent is permitted to apply all such money or
Government Obligations in accordance with Section 8.01; provided, however, that
if the Company has made any payment of principal of, premium (if any) or
interest on or any Additional Amounts with respect to any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
or Government Obligations held by the Trustee or the Paying Agent.
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ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities or waive any provision hereof or thereof without the
consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities, or to provide for the issuance of
bearer Securities (with or without coupons);
(4) to provide any security for any series of Securities or to
add guarantees of any series of Securities;
(5) to comply with any requirement in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) 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;
(7) to add any additional Events of Default with respect to
all or any series of the Securities (and, if such Events of Default are
applicable to less than all series of Securities, specifying the series
to which such Events of Default are applicable);
(8) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no outstanding Security of any series
created prior to the execution of such amendment or supplemental
indenture that is adversely affected in any material respect by such
change in or elimination of such provision;
(9) to establish the form or terms of Securities of any series
as permitted by Section 2.01;
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 8.01; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
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<PAGE> 52
(11) 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 7.08.
Upon the request of the Company, accompanied by a Board
Resolution, and upon receipt by the Trustee of the documents described in
Section 9.06, the Trustee shall, subject to Section 9.06, join with the Company
in the execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and
stipulations that may be therein contained.
SECTION 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture with the written consent
(including consents obtained in connection with a tender offer or exchange offer
for Securities of any one or more series or all series or a solicitation of
consents in respect of Securities of any one or more series or all series,
provided that in each case such offer or solicitation is made to all Holders of
then outstanding Securities of each such series (but the terms of such offer or
solicitation may vary from series to series)) of the Holders of at least a
majority in principal amount of the then outstanding Securities of all series
affected by such amendment or supplement (acting as one class).
Upon the request of the Company, accompanied by a Board
Resolution, and upon the filing with the Trustee of evidence of the consent of
the Holders as aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall, subject to Section 9.06, join with
the Company in the execution of such amendment or supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
The Holders of a majority in principal amount of the then
outstanding Securities of one or more series or of all series may waive
compliance in a particular instance by the Company with any provision of this
Indenture with respect to Securities of such series (including waivers obtained
in connection with a tender offer or exchange offer for Securities of such
series or a solicitation of consents in respect of Securities of such series,
provided that in each case such offer or solicitation is made to all Holders of
then outstanding Securities of such series (but the terms of such offer or
solicitation may vary from series to series)).
However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not:
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<PAGE> 53
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of, premium on or any mandatory
sinking fund payment with respect to, or change the Stated Maturity of,
any Security 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 6.02;
(4) reduce the premium, if any, payable upon the redemption of
any Security or change the time at which any Security may or shall be
redeemed;
(5) change any obligation of the Company to pay Additional
Amounts with respect to any Security;
(6) change the coin or currency or currencies (including
composite currencies) in which any Security or any premium, interest or
Additional Amounts with respect thereto are payable;
(7) impair the right to institute suit for the enforcement of
any payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Security pursuant to Sections
6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of
this Indenture pursuant to Section 6.04 or 6.07 or make any change in
this sentence of Section 9.02; or
(9) waive a continuing Default or Event of Default in the
payment of principal of, premium (if any) or interest on or Additional
Amounts with respect to the Securities.
A supplemental indenture that 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.
The right of any Holder to participate in any consent required
or sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required or sought as of
a date identified by the Company in a notice furnished to Holders in accordance
with the terms of this Indenture.
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<PAGE> 54
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders of each Security
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities shall comply in form and substance with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Security or portion of a Security if the Trustee
receives written notice of revocation before the date the amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record
date (which need not comply with Section 316(c) of the TIA) for the purpose of
determining the Holders entitled to consent to any amendment, supplement or
waiver or to take any other action under this Indenture. If a record date is
fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record date
unless consents from Holders of the principal amount of Securities required
hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it is of the type described in any of clauses
(1) through (9) of Section 9.02 hereof. In such case, the amendment, supplement
or waiver shall bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's Security.
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an
outstanding Security, the Company may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security at the request of the Company regarding the changed terms and return it
to the Holder. Alternatively, if the Company so determines, the Company in
exchange
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<PAGE> 55
for the Security shall issue and the Trustee shall authenticate a new Security
that reflects the changed terms. Failure to make the appropriate notation or to
issue a new Security shall not affect the validity of such amendment or
supplement.
Securities of any series authenticated and delivered after the
execution of any amendment or supplement 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 amendment or supplement.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized
pursuant to this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplement, the Trustee shall be entitled to receive, and, subject
to Section 7.01 hereof, shall be fully protected in relying upon, an Opinion of
Counsel provided at the expense of the Company as conclusive evidence that such
amendment or supplement is authorized or permitted by this Indenture, that it is
not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of TIA Section 318(c), the
imposed duties shall control.
SECTION 10.02 Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), telex,
facsimile or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company:
Conoco Inc.
600 North Dairy Ashford
Houston, Texas 77079
Facsimile: (281) 293-
------------
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<PAGE> 56
If to the Trustee:
------------------------------
------------------------------
------------------------------
Facsimile:
-------------------
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail, postage prepaid, to the Holder's address shown on the register
kept by the Registrar. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notice to the Trustee, it is duly given only
when received.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation
notices to the Trustee or the Company by Holders, shall be in writing, except as
otherwise set forth herein.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
SECTION 10.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
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<PAGE> 57
SECTION 10.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee at the expense of the Company:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 10.05) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(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 such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or the Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
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SECTION 10.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 10.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or other
owner of the Company or the Trustee, as such, shall not have any liability for
any obligations of the Company under the Securities or for any obligations of
the Company or the Trustee under this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release shall be part of the consideration for the issue of Securities.
SECTION 10.09 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 10.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any other Subsidiary of the Company.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 10.11 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 10.12 Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall, to the fullest extent
permitted by applicable law, not in any way be affected or impaired thereby.
SECTION 10.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
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SECTION 10.14 Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CONOCO INC.
By:
------------------------------------------
Name:
Title:
---------------------------------------------
as Trustee
By:
------------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 12.1
CONOCO
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(DOLLARS IN MILLIONS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
-------------------------------------------------
1998 1997 1996 1995 1994
------------- ------ ------ ------ ------
<S> <C> <C> <C> <C> <C>
Net income..................................... $ 450 $1,097 $ 863 $ 575 $ 422
Provision for income taxes..................... 244 1,010 1,038 774 551
Equity in earnings of investees................ (22) (40) 25 (22) (25)
------ ------ ------ ------ ------
Pre-tax income before adjustment for minority
interests in consolidated subsidiaries or
income or loss from equity investees...... 672 2,067 1,926 1,327 948
Fixed charges (see below)...................... 337 174 188 210 160
Amortization of capitalized interest........... 40 46 53 53 49
Distributed income of equity investees......... 105 58 85 42 75
Capitalized interest........................... (72) (94) (75) (95) (59)
------ ------ ------ ------ ------
Total adjusted earnings available for payment
of fixed charges(a)(b).................... $1,082 $2,251 $2,177 $1,537 $1,173
====== ====== ====== ====== ======
Ratio of earnings to fixed charges............. 3.2x 12.9x 11.6x 7.3x 7.3x
Fixed charges:
Interest and debt expense -- borrowings...... $ 199 $ 36 $ 74 $ 74 $ 63
Capitalized interest......................... 72 94 75 95 59
Rental expense representative of interest
factor.................................... 66 44 39 41 38
------ ------ ------ ------ ------
Total fixed charges.................. $ 337 $ 174 $ 188 $ 210 $ 160
====== ====== ====== ====== ======
Ratio of earnings before special items to fixed
charges:
Total adjusted earnings available for payment
of fixed charges(a)(b).................... $1,082 $2,251 $2,177 $1,537 $1,173
Special items (pre-tax)(c)................... 454 (91) (22) 71 113
------ ------ ------ ------ ------
Earnings adjusted for special items.......... $1,536 $2,160 $2,155 $1,608 $1,286
====== ====== ====== ====== ======
Fixed charges................................ $ 337 $ 174 $ 188 $ 210 $ 160
====== ====== ====== ====== ======
Ratio of earnings before special items to
fixed charges............................. 4.6x 12.4x 11.5x 7.7x 8.0x
</TABLE>
- ---------------
(a) No pre-tax losses of equity investees for which charges arising from
guarantees are included in fixed charges.
(b) No fixed charges in subsidiaries with minority interests.
(c) Special items are material nonrecurring items and generally consist of asset
sales, property impairments, tax rate changes, employee separation costs,
inventory write-downs, environmental insurance litigation recoveries,
environmental litigation charges and, in 1998, stock option provision. See
Item 7 of the Annual Report of Conoco Inc. on Form 10-K for the year ended
December 31, 1998.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Amendment No. 1 to Registration Statement on Form S-3
(No. 333-72291) of our report dated February 15, 1999 appearing on page 61 of
Conoco Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the references to us under the heading "Experts" in such
Prospectus.
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
February 25, 1999
