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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): MARCH 30, 1999
PENNZOIL-QUAKER STATE COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 1-5591 76-0200625
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
PENNZOIL PLACE
P.O. BOX 2967
HOUSTON, TEXAS 77252-2967
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 546-4000
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ITEM 5. OTHER EVENTS.
On March 25, 1999, Pennzoil-Quaker State Company (the "Company")
entered into an Underwriting Agreement, in the form of Exhibit 1 hereto, with
the Underwriters named therein with respect to the issue and sale by the Company
of $200,000,000 aggregate principal amount of its 6 3/4% Notes due April 1, 2009
(the "Notes") and $400,000,000 aggregate principal amount of its 7 3/8%
Debentures due April 1, 2029 (the "Debentures" and together with the Notes, the
"Debt Securities"). The Debt Securities were registered under the Securities Act
of 1933, as amended, pursuant to a shelf registration statement (Registration
Statement No. 333-65909) of the Company. The Debt Securities will be issued
under an Indenture, dated as of February 1, 1999, between the Company and Chase
Bank of Texas, National Association, as Trustee, in the form of Exhibit 4.1
hereto, as supplemented by the Company's Officer's Certificate Delivered
Pursuant to Section 301 of the Indenture dated as of February 1, 1999, dated as
of March 30, 1999, in the form of Exhibit 4.2 hereto.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed herewith:
1 Underwriting Agreement, dated as of March 25, 1999, among the
Company and Chase Securities Inc., Lehman Brothers, Merrill Lynch & Co.,
Deutsche Bank Securities, J.P. Morgan & Co., Morgan Stanley Dean Witter,
NationsBanc Montgomery Securities LLC, PaineWebber Incorporated, Salomon
Smith Barney and Warburg Dillon Read LLC.
4.1 Indenture, dated as of February 1, 1999, between the Company and
Chase Bank of Texas, National Association, as Trustee.
4.2 Officer's Certificate Delivered Pursuant to Section 301 of the
Indenture dated as of February 1, 1999, dated as of March 30, 1999,
providing for the issuance of the Company's 6 3/4% Notes due April 1, 2009
and 7 3/8% Debentures due April 1, 2029.
4.3 Form of 6 3/4% Note due April 1, 2009 and 7 3/8% Debenture due
April 1, 2029 (included in Exhibit 4.2 above).
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PENNZOIL-QUAKER STATE COMPANY
Date: March 30, 1999 By: /s/ DAVID P. ALDERSON II
---------------------------------------
David P. Alderson II
Group Vice President, Chief Financial
Officer and Treasurer
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EXHIBIT 1
================================================================================
PENNZOIL-QUAKER STATE COMPANY
(a Delaware corporation)
$200,000,000 6 3/4% NOTES DUE 2009
$400,000,000 7 3/8% Debentures Due 2029
--------------------------------
UNDERWRITING AGREEMENT
--------------------------------
Dated: March 25, 1999
================================================================================
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TABLE OF CONTENTS
UNDERWRITING AGREEMENT..................................................... 4
SECTION 1. Representations and Warranties.................................. 3
(a) Representations and Warranties by the Company................... 3
(1) Compliance with Registration Requirements................. 3
(2) Incorporated Documents.................................... 3
(3) Independent Accountants................................... 4
(4) Financial Statements...................................... 4
(5) No Material Adverse Change in Business.................... 4
(6) Good Standing of the Company.............................. 5
(7) Good Standing of Subsidiaries............................. 5
(8) Capitalization............................................ 6
(9) Authorization of this Agreement........................... 6
(10) Authorization of the Indenture............................ 6
(11) Authorization of the Securities........................... 6
(12) Description of the Securities and the Indenture........... 6
(13) Absence of Defaults and Conflicts......................... 6
(14) Absence of Labor Disputes................................. 7
(15) Absence of Proceedings.................................... 7
(16) Accuracy of Exhibits...................................... 8
(17) Absence of Further Requirements........................... 8
(18) Possession of Intellectual Property....................... 8
(19) Possession of Licenses and Permits........................ 8
(20) Tax Returns............................................... 8
(21) Environmental Laws........................................ 9
(22) Insurance................................................. 9
(23) No Stabilization.......................................... 9
(24) Investment Company Act.................................... 9
(b) Officers' Certificates.......................................... 10
SECTION 2. Sale and Delivery to Underwriters; Closing...................... 10
(a) Securities...................................................... 10
(b) Payment......................................................... 10
(c) Denominations; Registration..................................... 10
SECTION 3. Covenants of the Company........................................ 11
(a) Compliance with Securities Regulations and Commission Requests.. 11
(b) Filing of Amendments............................................ 11
(c) Delivery of Registration Statements............................. 11
(d) Delivery of Prospectus.......................................... 12
(e) Continued Compliance with Securities Laws....................... 12
(f) Blue Sky Qualifications......................................... 12
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<TABLE>
<S> <C> <C>
(g) Earnings Statement.............................................. 12
(h) Use of Proceeds................................................. 13
(i) Restriction on Sale of Securities............................... 13
(j) Reporting Requirements.......................................... 13
SECTION 4. Payment of Expenses............................................. 13
(a) Expenses........................................................ 13
(b) Termination of Agreement........................................ 13
SECTION 5. Conditions of Underwriters' Obligations......................... 14
(a) Effectiveness of Registration Statement......................... 14
(b) Opinion of Counsel for Company.................................. 14
(c) Opinion of Counsel for Underwriters............................. 14
(d) Officers' Certificate........................................... 15
(e) Accountant's Comfort Letters.................................... 15
(f) Bring-down Comfort Letter....................................... 15
(g) Maintenance of Rating........................................... 15
(h) Additional Documents............................................ 15
(i) Termination of Agreement........................................ 16
SECTION 6. Indemnification................................................. 16
(a) Indemnification of Underwriters by the Company.................. 16
(b) Indemnification of Company, Directors and Officers.............. 17
(c) Actions against Parties; Notification........................... 17
(d) Settlement without Consent if Failure to Reimburse.............. 18
SECTION 7. Contribution.................................................... 18
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.. 19
SECTION 9. Termination of Agreement........................................ 20
(a) Termination; General............................................ 20
(b) Liabilities..................................................... 20
SECTION 10. Default by One or More of the Underwriters...................... 20
SECTION 11. Notices......................................................... 21
SECTION 12. Parties......................................................... 21
SECTION 13. Governing Law and Time.......................................... 21
SECTION 14. Effect of Headlines............................................. 21
</TABLE>
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<TABLE>
<S> <C> <C>
SCHEDULES
Schedule A - List of Underwriters.......................................... Sch A-1
Schedule B - Pricing Information........................................... Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel........................... A-1
</TABLE>
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PENNZOIL-QUAKER STATE COMPANY
(a Delaware corporation)
$200,000,000 6 3/4% Notes Due 2009
$400,000,000 7 3/8% Debentures Due 2029
UNDERWRITING AGREEMENT
March 25, 1999
CHASE SECURITIES INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
as Representatives of the several Underwriters
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Pennzoil-Quaker State Company, a Delaware corporation (the "Company")
confirms its agreement with Chase Securities Inc., Lehman Brothers and Merrill
Lynch & Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch") and each of the other Underwriters named in Schedule A-1 and A-2 hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Chase
Securities Inc., Lehman Brothers and Merrill Lynch are acting as Joint Book-
Running Manager Representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the
Underwriters, acting severally and not jointly, of (a) $200,000,000 aggregate
principal amount of the Company's 6 3/4% Notes due 2009 (the "2009 Notes") in
the principal amounts set forth in Schedule A-1 hereof and (b) $400,000,000
aggregate principal amount of the Company's 7 3/8% Debentures due 2029 (the
"2029 Debentures") in the principal amounts set forth in Schedule A-2 hereof
(collectively, the "Securities"). The Securities are to be issued pursuant to
the indenture dated as of February 1, 1999 (the "Indenture") between the Company
and Chase
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Bank of Texas, National Association, as trustee (the "Trustee"). The term
"Indenture," as used herein, includes the Board Resolutions and Officer's
Certificate (as defined in the Indenture) or the supplemental indenture
establishing the form and terms of the Securities pursuant to Sections 301 and
904 of the Indenture.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives deem advisable after
this Agreement has been executed and delivered and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-65909) and pre-
effective Amendment No. 1 thereto for the registration of the Securities under
the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance with Rule 415 of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
and the Company has filed such post-effective amendments thereto as may be
required. Such registration statement (as so amended, if applicable) has been
declared effective by the Commission and the Indenture has been duly qualified
under the 1939 Act. Such registration statement (as so amended, if applicable),
including the information, if any, deemed to be a part thereof pursuant to Rule
430A(b) of the 1933 Act Regulations (the "Rule 430A Information") is referred to
herein as the "Registration Statement"; and the final prospectus and the final
prospectus supplement relating to the offering of the Underwritten Securities,
in the form first furnished to the Underwriters by the Company for use in
connection with the offering of the Underwritten Securities, are collectively
referred to herein as the "Prospectus"; provided, however, that all references
to the "Registration Statement" and the "Prospectus" shall also be deemed to
include all documents incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"). A "preliminary
prospectus" shall be deemed to refer to the prospectus dated January 25, 1999,
and any preliminary prospectus supplement used before the filing or delivery of
a final prospectus and final prospectus supplement relating to the offering
filed with the Commission pursuant to Rule 424(b) of the 1933 Act. For purposes
of this Underwriting Agreement, all references to the Registration Statement,
Prospectus or preliminary prospectus or to any amendment or supplement to any of
the foregoing shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter, as of the date hereof, as of the Closing Time
referred to in Section 2(b) hereof, and agrees with each Underwriter, as
follows:
(1) Compliance with Registration Requirements. The Company meets the
requirements for use of Form S-3 under the 1933 Act. The Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. In addition, the Indenture has been
duly qualified under the 1939 Act.
At the respective times the Registration Statement and any post-
effective amendments thereto became effective and at the Closing Time, the
Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933
Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any amendments or
supplements thereto were issued and at the Closing Time, included or will
include an untrue statement of a material fact or omitted or will omit to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information furnished in writing by any Underwriter through
any of the Representatives expressly for use in the Registration Statement
or the Prospectus.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and, if
applicable, each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with the offering of the Securities
will, at the time of such delivery, be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(2) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and Prospectus,
when they became effective or at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and
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regulations of the Commission thereunder (the "1934 Act Regulations") and,
when read together with the other information in the Prospectus, at the
date of the Prospectus, and at the Closing Time did not and will not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(3) Independent Accountants. The accountants who certified the
financial statements and supporting schedules of each of the Company and
Quaker State Corporation ("Quaker State") included in the Registration
Statement and the Prospectus are independent certified public accountants
with respect to the Company and its subsidiaries and Quaker State and its
subsidiaries, respectively, within the meaning of Regulation S-X under the
1933 Act.
(4) Financial Statements. The financial statements of the Company
included or incorporated by reference in the Registration Statement and the
Prospectus, together with the related schedules and notes, as well as those
financial statements, schedules and notes of any other entity included
therein, present fairly in all material respects the financial position of
the Company and its consolidated subsidiaries at the dates indicated and
the statement of operations and cash flows of the Company and its
consolidated subsidiaries for the periods specified. The financial
statements of Quaker State included or incorporated by reference in the
Registration Statement and the Prospectus, together with the related
schedules and notes, as well as those financial statements, schedules and
notes of any other entity included therein, present fairly in all material
respects the financial position of Quaker State and its consolidated
subsidiaries at the dates indicated and the statement of operations and
cash flows of Quaker State and its consolidated subsidiaries for the
periods specified. Such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved. The supporting
schedules, if any, included or incorporated by reference in the
Registration Statement and Prospectus present fairly in all material
respects in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly in all material respects the information shown
therein and have been compiled on a basis consistent with that of the
audited financial statements included or incorporated by reference in the
Registration Statement and the Prospectus. In addition, any pro forma
financial statements of the Company and its subsidiaries and the related
notes thereto included or incorporated by reference in the Registration
Statement and the Prospectus present fairly in all material respects the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein,
and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
and circumstances referred to therein.
(5) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition,
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financial or otherwise, or in the earnings or business affairs of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect"),
(B) there have been no transactions entered into by the Company or any of
its subsidiaries, other than those arising in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise and (C) except for cash dividends
on the Company's common stock in amounts not exceeding an aggregate of
$0.25 per share, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock
since December 31, 1998.
(6) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the state of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its obligations
under, or as contemplated under, this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect.
(7) Good Standing of Subsidiaries. Each Subsidiary (as defined
herein) of the Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
organization, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect. Except as
otherwise stated in the Registration Statement and the Prospectus, all of
the issued and outstanding capital stock of each Subsidiary has been duly
authorized and is validly issued, fully paid and non-assessable and is
owned by the Company, directly or through Subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or equity
other than the pledges to banks under the loan agreements of the Company.
None of the outstanding shares of capital stock of the Subsidiaries was
issued in violation of preemptive or other similar rights arising by
operation of law, under the charter or by-laws of any Subsidiary or under
any agreement to which the Company or any Subsidiary is a party. Except
for the stock of the Subsidiaries and as disclosed in the Registration
Statement, the Company does not own, and at the Closing Date will not own,
directly or indirectly, any shares of stock or any other equity or long-
term debt securities of any corporation or have any equity interest in any
firm, partnership, joint venture, association or other entity that
constitutes a "significant subsidiary" as such term is defined in Rule 1-02
of Regulation S-X promulgated under the Act. Complete and correct copies
of the certificate of incorporation and of the by-laws of the Company,
Quaker State and Jiffy Lube International, Inc. ("Jiffy Lube" and
collectively with Quaker State, the "Subsidiaries") and
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all amendments thereto have been delivered to the Underwriters, and no
changes therein will be made subsequent to the date hereof and prior to the
Closing Date.
(8) Capitalization. The capitalization of the Company as of December
31, 1998, is as set forth in the Prospectus in the column entitled
"December 31, 1998 - Historical" under the caption "Capitalization" (except
for subsequent issuances of capital stock, if any, pursuant to employee
benefit plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus).
(9) Authorization of this Agreement. This Agreement has been, as of
the date hereof, duly authorized, executed and delivered by the Company.
(10) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when
duly executed and delivered by the Company and the Trustee, will constitute
a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights and remedies
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(11) Authorization of the Securities. The Securities have been duly
authorized and, at the Closing Time, will have been duly executed by the
Company, and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the purchase
price therefor as provided in this Agreement, will constitute valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights and remedies generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law), and will be in the form contemplated by, and entitled to the
benefits of, the Indenture.
(12) Description of the Securities and the Indenture. The Securities
and the Indenture conform in all material respects to the respective
statements relating thereto contained in the Prospectus and the Indenture
is in substantially the form filed or incorporated by reference, as the
case may be, as exhibits to the Registration Statement.
(13) Absence of Defaults and Conflicts. Neither the Company nor any
of its Subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of material contract or agreement to which
the Company or any of its Subsidiaries is a party or by which it or any of
them may be bound, or to which any of the property or assets of the Company
or any Subsidiary is subject (collectively, "Agreements
6
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and Instruments"), except for such defaults as would not result in a
Material Adverse Effect. The execution, delivery and performance of this
Agreement and any other agreement or instrument entered into or issued or
to be entered into or issued by the Company in connection with the
transactions contemplated hereby or thereby or in the Registration
Statement and the Prospectus and the consummation of the transactions
contemplated herein and in the Registration Statement and the Prospectus
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described under the caption
"Use of Proceeds") and compliance by the Company with its obligations under
this Agreement have been duly authorized by all necessary corporate action
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any assets,
properties or operations of the Company or any of its Subsidiaries pursuant
to, any Agreements and Instruments, except for such conflicts, breaches,
defaults, events or liens, charges or encumbrances that, singly or in the
aggregate, would not result in a Material Adverse Effect, nor will such
action result in any violation of any existing applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its Subsidiaries or any of their
assets or properties, which violation would result in a Material Adverse
Effect, nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any of its Subsidiaries. As used
herein, a "Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any Subsidiary.
(14) Absence of Labor Disputes. No labor dispute with the employees
of the Company or any of its Subsidiaries exists or, to the knowledge of
the Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any of its
Subsidiaries' principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries has
violated (i) any federal, state or local law or foreign law relating to
discrimination in hiring, promotion or pay of employees applicable to the
Company or any of its Subsidiaries or (ii) any applicable wage or hour laws
in any manner, which violation could reasonably be expected to have a
Material Adverse Effect.
(15) Absence of Proceedings. Except as disclosed in the Registration
Statement and the Prospectus, there is no action, suit, proceeding, inquiry
or investigation before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any Subsidiary which is
required to be disclosed in the Registration Statement and the Prospectus
(other than as stated therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to materially and adversely affect the purchase and sale of the Securities
or would be required to be disclosed in the Registration Statement or the
Prospectus which is not disclosed in the Registration Statement or
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Prospectus. The aggregate of all pending legal or governmental proceedings
to which the Company or any Subsidiary thereof is a party or of which any
of their respective assets or properties is the subject which are not
described in the Registration Statement and the Prospectus, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse Effect.
(16) Accuracy of Exhibits. There are no contracts or documents which
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and/or filed as required.
(17) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations under this Agreement or in connection with the transactions
contemplated under this Agreement or for the due execution, delivery or
performance of the Indenture by the Company, except such as have been
already obtained or as may be required under state securities laws.
(18) Possession of Intellectual Property. The Company and its
Subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its Subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its Subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(19) Possession of Licenses and Permits. The Company and its
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now conducted by them except where the
absence of such Governmental Licenses would not have a Material Adverse
Effect.
(20) Tax Returns. All material United States federal income tax
returns of the Company and its Subsidiaries required by law to be filed
have been filed and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid, except for such taxes, if any,
as are being contested in good faith and as to which adequate reserves have
been provided. The Company and its Subsidiaries have filed all other
material tax returns that are required to have been filed by them pursuant
to applicable foreign, state, local
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or other law except insofar as the failure to file such returns would not
result in a Material Adverse Effect, and has paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company and its
Subsidiaries, except for such taxes, if any, as are being contested in good
faith and as to which adequate reserves have been provided.
(21) Environmental Laws. Except as described in the Registration
Statement and the Prospectus and except such matters as would not, singly
or in the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its Subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative order, consent, decree
or judgment thereof, including any judicial or administrative order,
consent, decree or judgment relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance
with their requirements, and (C) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, individually
or in the aggregate result in a Material Adverse Effect.
(22) Insurance. The Company maintains insurance coverage covering
its properties, operations, personnel and businesses. In the Company's
reasonable judgement, such insurance insures against such losses and risks
as are adequate to protect the Company. The Company has not received notice
from any insurer or agent of such insurer that substantial capital
improvements or other expenditures will have to be made in order to
continue such insurance; all such insurance is outstanding and duly in
force on the date hereof and will be outstanding and duly in force at
Closing Time.
(23) No Stabilization. Neither the Company nor any of its officers,
directors or controlling persons has taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(24) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment
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Company Act of 1940, as amended, and the rules and regulations of the
Commission promulgated thereunder (the "1940 Act").
(b) Officers' Certificates. Any certificate signed by any officer of the
Company or any Subsidiary and delivered to the Representatives or to counsel for
the Underwriters in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby on the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B-1 and Schedule B-2, the aggregate principal
amount of respective Securities set forth in Schedule A-1 and Schedule A-2
opposite the name of such Underwriter, plus any additional principal amount of
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for the Securities shall be made at the office of Andrews & Kurth
L.L.P., 600 Travis Street, Suite 4200, Houston, Texas 77002-3090, or at such
other place as shall be agreed upon by the Representatives and the Company, at
10:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10 hereof), or such other
time not later than ten business days after such date as shall be agreed upon by
the Representatives and the Company (such time and date of payment and delivery
being herein called "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery to
the Representatives for the respective accounts of the Underwriters of one or
more global notes in the aggregate principal amount of the 2009 Notes and one
or more global notes in the aggregate principal amount of the 2029 Debentures,
collectively representing the Securities to be purchased by them. Delivery of
the Securities shall be made through the facilities of the Depository Trust
Company unless the Underwriters shall otherwise instruct. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the
Securities which it has severally agreed to purchase. The Representatives,
individually and not as representatives of the Underwriters may (but shall not
be obligated to) make payment of the purchase price for the Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(c) Denominations; Registration. The Certificates for the Securities
shall be in global form and in such denominations and registered in such names
as the Representatives may request in writing at least one full business day
prior to the Closing Time. The Securities which may be in temporary form will
be made available for examination and packaging by the Representatives in the
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City of New York not later than 10:00 A.M. (Eastern time) on the business day
prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
Underwriter participating in the offering of Securities, as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company subject to Section 3(b), will comply with the requirements of Rule 430A,
and will notify the Representatives immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Company will promptly effect the filings necessary pursuant
to Rule 424(b) and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b)
was received for filing by the Commission and, in the event that it was not, it
will promptly file such prospectus. The Company will make every reasonable
effort to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the Registration
Statement or any amendment, supplement or revision to either the Prospectus
included in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representatives with copies of any such documents a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not file or use any such document to which the Representatives or counsel
for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representatives and counsel for the Underwriters, without
charge, (i) signed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein), (ii) copies of the Registration Statement and each amendment
thereto in the form electronically filed with the Commission pursuant to EDGAR
and (iii) signed copies of all consents and certificates of experts, and will
also deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The Registration Statement and
any amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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(d) Delivery of Prospectus. The Company has delivered to each
Underwriter, without charge, as many copies of the prospectus and preliminary
prospectus supplement as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and the Prospectus. If at any time when a
Prospectus is required by the 1933 Act or the 1934 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company, to amend the Registration Statement in
order that the Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to amend or
supplement any Prospectus in order that the Prospectus will not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement any Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the
Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities and any related
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date of this Agreement; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the date of this Agreement.
(g) Earnings Statement. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its security holders as soon as practicable
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an earnings statement for the purposes of, and to provide the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectus under
"Use of Proceeds".
(i) Restriction on Sale of Securities. During the period from the date of
this agreement through the date that the Underwriters have completed their
distribution of the Securities, the Company will not, without the prior written
consent of the Representatives, directly or indirectly, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, any debt securities
of the Company.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses. (a) Expenses. The Company will pay
all expenses incident to the performance of its obligations under this
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, any Agreement among
Underwriters, the Indentures, and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the Securities and
any certificates for the Securities to the Underwriters, including any transfer
taxes and any stamp or other duties payable upon the sale, issuance or delivery
of the Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including transfer
agents and registrars), as well as the fees and disbursements of the Trustees
and their respective counsel, (v) the qualification of the Securities under
state securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, and any amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of each preliminary
prospectus, and the Prospectus and any amendments or supplements thereto, (vii)
the fees charged by nationally recognized statistical rating organizations for
the rating of the Securities, if applicable, (viii) the fees and expenses
incurred with respect to the listing of the Securities, if applicable, and (ix)
the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review, if any, by the
National Association of Securities Dealers, Inc. (the "NASD") of the terms of
the sale of the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5 or Section
9(a)(i) or Section 10 hereof, the Company shall reimburse the Underwriters for
all of their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters; provided, however, that such
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reimbursement after termination pursuant to Section 10 shall be limited to non-
defaulting Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Securities are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any of its
Subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been initiated or be
pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
information relating to the description of the Securities, the specific method
of distribution and similar matters shall have been filed with the Commission in
accordance with Rule 424(b)(1), (2), (3), (4) or (5), as applicable (or any
required post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule 430A).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
shall have received the favorable opinion, dated as of Closing Time, of Baker &
Botts, L.L.P. counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of such
letter for each of the other Underwriters, to the effect set forth in Exhibit A
hereto and to such further effect as counsel to the Underwriters may reasonably
request. In giving such opinion such counsel may rely, as to matters governed
by the laws of jurisdictions other than the contract law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Andrews & Kurth L.L.P., counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
with respect to the matters set forth in clauses (i), (ii), (v) (vi) through
(xi), inclusive, (xiv) and the penultimate paragraph of Exhibit A hereto. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the State of New York, the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Representatives.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
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(d) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change or any development
involving a prospective material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs of the Company and its
Subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and the Representatives shall have received a
certificate of the Company, executed by the President or a Vice President of
the Company and the chief financial officer or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though expressly
made at and as of the Closing Time, (iii) the Company has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Time, (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or, to the Company's
knowledge, threatened by the Commission.
(e) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Representatives shall have received from Arthur Andersen LLP,
independent accountants for the Company and PricewaterhouseCoopers LLP, former
independent accountants for Quaker State, letters dated such date, in form and
substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from Arthur Andersen LLP and PricewaterhouseCoopers LLP letters,
dated as of Closing Time, to the effect that they reaffirm the statements made
in the letter furnished pursuant to subsection (e) of this Section 5, except
that the specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(g) Maintenance of Rating. At Closing Time, the Securities shall be rated
at least Baa2 by Moody's Investor's Service Inc. and BBB- by Standard & Poor's
Ratings Group, a division of McGraw-Hill, Inc., and the Company shall have
delivered to the Representatives a letter dated the Closing Time, from each such
rating agency, or other evidence satisfactory to the Representatives, confirming
that the Securities have such ratings; and since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Securities or any of the Company's other securities by any "nationally
recognized statistical rating agency", as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 Act, and no such organization
shall have publicly announced that it has under surveillance or review its
rating of the Securities or any of the Company's other securities.
(h) Additional Documents. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
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of the conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be reasonably satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
(i) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters by the Company. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information deemed to be a part thereof, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Representatives),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement
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or omission made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information deemed to be a part thereof, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company, Directors and Officers. Each Underwriter
severally agrees to indemnify and hold harmless the Company, its directors, each
of its officers who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), including the Rule 430A Information deemed to be a
part thereof, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. If any such action is brought against any indemnified party and it
notifies the indemnifying party of its commencement, the indemnifying party will
be entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action, with
counsel satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party for
any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified party
in connection with the defense. The indemnified party will have the right to
employ its own counsel in any such action, but the fees, expenses and other
charges of such counsel will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based on advice of counsel) that there may be legal defenses
available to it or other indemnified parties that are different from or in
addition to those available to the indemnifying party, (3) a conflict or
potential conflict exists (based on advice of counsel to the indemnified party)
between the indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such action
on behalf of the indemnified party) or (4) the indemnifying party has not in
fact employed counsel satisfactory to the indemnified party to assume the
defense of such action within a reasonable time after receiving notice of the
commencement of the action, in each of which cases the reasonable fees,
disbursements
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and other charges of counsel will be at the expense of the indemnifying party or
parties. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(c) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and of the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the total
underwriting
18
<PAGE>
discounts received by the Underwriters, in each case as set forth on the cover
of the Prospectus, bear to the aggregate public offering price of such
Securities as set forth on such cover.
The relative fault of the Company, on the one hand, and the Underwriters,
on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1993 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Securities set forth opposite their respective names
in Schedule A-1 and Schedule A-2 hereto, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its Subsidiaries submitted
pursuant hereto or thereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of and payment for the Securities.
19
<PAGE>
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change or any development involving a prospective material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs of the Company whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale of
the Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock
Exchange, or if trading generally on the American Stock Exchange or the New York
Stock Exchange or in the Nasdaq National Market has been suspended or materially
limited, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices have been required, by any of said exchanges or by such system
or by order of the Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section
9, such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), then the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased, each of the non-
defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter.
20
<PAGE>
No action taken pursuant to this Section 10 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in the termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone the Closing Time, for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or the
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for a Underwriter under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives, c/o Merrill Lynch at 1221
McKinney, Houston, Texas 77010, attention of William C. Montgomery and notices
to the Company shall be directed to it at Pennzoil-Quaker State Company,
Pennzoil Place, Houston, Texas 77252-2967.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company and the Underwriters and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and thereto and
their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT AND THE TERMS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
SECTION 14. Effect of Headlines. The Article and Section headings
herein and any table of contents are for convenience only and shall not affect
the construction hereof.
21
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Agreement, along with all counterparts, will become a binding agreement among
the Underwriters and the Company in accordance with its terms.
Very truly yours,
PENNZOIL-QUAKER STATE COMPANY
By: /s/ David P. Alderson II
---------------------------------
Name: David P. Aldserson II
Title: Group Vice President, Chief
Financial Officer and Treasurer
22
<PAGE>
CONFIRMED AND ACCEPTED,
as of the date first
above written:
CHASE SECURITIES INC.
LEHMAN BROTHERS INC.
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith,
Incorporated
By: CHASE SECURITIES INC.
By: /s/ William Dexter Rogers
------------------------------
Authorized Signatory
By: LEHMAN BROTHERS INC.
By: /s/ Grant Porter
------------------------------
Authorized Signatory
By: MERRILL LYNCH, PIERCE, FENNER & SMITH,
INCORPORATED
By: /s/ William B. Montgomery
------------------------------
Authorized Signatory
For themselves and as the Representatives of the other
Underwriters.
23
<PAGE>
SCHEDULE A-1
$200,000,000 6 3/4% Notes due 2009
Principal
Amount of
Name of Underwriter 2009 Notes
------------------- ------------
Chase Securities Inc...................................... $ 44,000,000
Lehman Brothers Inc....................................... 50,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.................................. 64,000,000
Deutsche Bank Securities Inc.............................. 6,000,000
J.P. Morgan Securities Inc................................ 6,000,000
Morgan Stanley& Co. Incorporated.......................... 6,000,000
NationsBanc Montgomery Securities LLC..................... 6,000,000
PaineWebber Incorporated.................................. 6,000,000
Salomon Smith Barney Inc.................................. 6,000,000
Warburg Dillon Read LCC................................... 6,000,000
------------
Total..................................................... $200,000,000
============
24
<PAGE>
SCHEDULE A-2
$400,000,000 7 3/4% Debentures due 2029
Principal
Amount of
Name of Underwriter 2029 Debentures
------------------- ---------------
Chase Securities Inc.................................... $ 88,000,000
Lehman Brothers Inc..................................... 100,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................ 128,000,000
Deutsche Bank Securities Inc............................ 12,000,000
J.P. Morgan Securities Inc.............................. 12,000,000
Morgan Stanley & Co. Incorporated....................... 12,000,000
NationsBanc Montgomery Securities LLC................... 12,000,000
PaineWebber Incorporated................................ 12,000,000
Salomon Smith Barney Inc................................ 12,000,000
Warburg Dillon Read LCC................................. 12,000,000
------------
Total................................................... $400,000,000
============
25
<PAGE>
SCHEDULE B-1
PENNZOIL-QUAKER STATE COMPANY
$200,000,000 6 3/4% Notes due 2009
1. The initial public offering price of the 2009 Notes shall be
99.490% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the 2009
Notes shall be 98.840% of the principal amount thereof.
3. The interest rate on the 2009 Notes shall be 6.75% per annum.
4. The Notes will be redeemable as a whole or in part, at the option
of the Company at any time at a redemption price equal to the greater of (i)
100% of the principal amount of the Notes to be redeemed and (ii) the sum of the
present values of the remaining scheduled payments of principal and interest on
the Notes discounted to the redemption date on a semiannual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury Rate (as
defined in the Indenture) plus 25 basis points, plus accrued interest thereon to
the date of redemption.
26
<PAGE>
SCHEDULE B-2
PENNZOIL-QUAKER STATE COMPANY
$400,000,000 7 3/8% Debentures due 2029
1. The initial public offering price of the 2029 Debentures shall be
99.479% of the principal amount thereof, plus accrued interest, if any, from the
date of issuance.
2. The purchase price to be paid by the Underwriters for the 2029
Debentures shall be 98.622% of the principal amount thereof.
3. The interest rate on the 2029 Debentures shall be 7.375% per
annum.
4. The Debentures will be redeemable as a whole or in part, at the
option of the Company at any time at a redemption price equal to the greater of
(i) 100% of the principal amount of the Debentures to be redeemed and (ii) the
sum of the present values of the remaining scheduled payments of principal and
interest on the Debentures discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as defined in the Indenture) plus 35 basis points, plus accrued
interest thereon to the date of redemption.
27
<PAGE>
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to execute and deliver and perform its obligations under the
Underwriting Agreement.
(iii) Each Subsidiary is a corporation duly incorporated and validly
existing in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of each Subsidiary is validly issued, fully paid and
non-assessable and, to the best of our knowledge, is owned by the Company,
directly or through Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
(iv) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Indenture has been duly authorized, executed and delivered by
the Company and (assuming the due authorization, execution and delivery thereof
by the Trustee) constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights and
remedies generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(vi) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, assuming the Securities have been
authenticated by the Trustee in the manner provided for in the Indenture (which
we have not independently determined) and delivered against payment of the
consideration therefor specified in the Underwriting Agreement, will constitute
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights and remedies generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether
A-1
<PAGE>
enforcement is considered in a proceeding in equity or at law), and each
registered holder thereof is entitled to the benefits of the Indenture.
(vii) The Indenture has been duly qualified under the 1939 Act.
(viii) The Securities and the Indenture conform as to legal matters
in all material respects to the descriptions thereof contained in the Prospectus
and are in substantially the form filed or incorporated by reference, as the
case may be, as an exhibit to the Registration Statement.
(ix) The Registration Statement has been declared effective under the
1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and, to
the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose have
been instituted or are pending or threatened under the 1933 Act.
(x) The Registration Statement and the Prospectus, excluding the
documents incorporated by reference therein (other than the financial statements
and other financial data and supporting schedules included therein or omitted
therefrom and the Trustee's Statement of Eligibility on Form T-1 (the "Form T-
1"), as to which we express no opinion) as of their respective effective or
issue dates appear on their face to have been appropriately responsive in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(xi) The documents incorporated by reference in the Prospectus (other
than the financial statements, other financial data and supporting schedules
included therein or omitted therefrom, as to which we express no opinion, and
except to the extent that any statement therein is modified or superseded in the
Prospectus), as of the dates they became effective or were filed with the
Commission, as the case may be, appear on their face to be appropriately
responsive in all material respects with the requirements of the 1934 Act and
the 1934 Act Regulations.
(xii) Except as set forth in the Prospectus (or incorporated by
reference therein), we do not know of any action, suit, proceeding, inquiry or
investigation pending or threatened against the Company or any of its
subsidiaries, or to which the property of the Company or any of its subsidiaries
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, that is material to the Company and its consolidated
subsidiaries taken as a whole.
(xiii) We do not know of any statutes or regulations or any pending
or threatened legal or governmental proceedings required to be described in the
Prospectus which are not described as required, nor of any material contracts or
documents of a character required to be described in the Registration Statement
or Prospectus or to be filed or incorporated as exhibits to the Registration
Statement which are not described and filed or incorporated as required.
(xiv) No authorization, approval, consent or license of any
regulatory body or authority (other than under the 1933 Act, the 1939 Act and
the securities or Blue Sky laws of the various states) and no approval of the
stockholders of the Company is required for the valid
A-2
<PAGE>
authorization, issuance, sale and delivery of the Securities by the Company, or
for the execution, delivery or performance of the Indenture.
(xv) The execution and delivery of the Underwriting Agreement and the
Indenture, the consummation of the transactions contemplated in the Underwriting
Agreement and compliance with the terms of the Underwriting Agreement and the
Indenture do not and will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, the charter or by-laws of
the Company or any of the Subsidiaries, or, to our knowledge, any indenture,
mortgage or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which they or any of their property is bound, or
any existing applicable law, rule, regulation, or, to our knowledge, any
judgment, order or decree of any government, governmental instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of the
Subsidiaries or any of their properties, which is material to the Company and
its Subsidiaries, considered as one enterprise.
(xvi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
We have participated in conferences with officers and other
representatives of the Company, counsel employed by the Company, representatives
of the independent accountants of the Company and Quaker State, representatives
of the independent engineers of the Company and your representatives and your
counsel at which the contents of the Registration Statement and the Prospectus
and related matters were discussed. Although we are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except for
the statements referred to in paragraph (viii), upon which we are passing), we
advise you that, on the basis of the foregoing (relying in part upon the factual
statements of officers and other representatives of the Company), no facts have
come to our attention which lead us to believe that the Registration Statement
(except for the financial statements and other financial data included therein
or omitted therefrom, and the Form T-1, as to which we have not been asked to
comment), at the time such Registration Statement became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus (except for the financial statements and other financial
data included therein or omitted therefrom, and the Form T-1, as to which we
have not been asked to comment), at the time the Prospectus was issued, or at
the Closing Time, contained or contains an untrue statement of material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
A-3
<PAGE>
EXHIBIT 4.1
================================================================================
PENNZOIL-QUAKER STATE COMPANY
AND
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION
TRUSTEE
_______________
INDENTURE
DATED AS OF FEBRUARY 1, 1999
________________
DEBT SECURITIES
================================================================================
<PAGE>
PENNZOIL-QUAKER STATE COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND Indenture, DATED AS OF FEBRUARY 1, 1999
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
<S> <C> <C>
(S) 310 (a)(1)....................................... 609
(a)(2)....................................... 609
(a)(3)....................................... Not Applicable
(a)(4)....................................... Not Applicable
(b).......................................... 608, 610
(S) 311 (a).......................................... 613
(b).......................................... 613
(c).......................................... Not Applicable
(S) 312 (a).......................................... 701, 702(a)
(b).......................................... 702(b)
(c).......................................... 702(b)
(S) 313 (a).......................................... 703(a)
(b).......................................... 703(a)
(c).......................................... 703(a)
(d).......................................... 703(b)
(S) 314 (a).......................................... 704, 1005
(b).......................................... Not Applicable
(c)(1)....................................... 103
(c)(2)....................................... 103
(c)(3)....................................... Not Applicable
(d).......................................... Not Applicable
(e).......................................... 103
(S) 315 (a).......................................... 601(a)
(b).......................................... 602
(c).......................................... 601(b)
(d).......................................... 601(c)
(d)(1)....................................... 601(a)(1)
(d)(2)....................................... 601(c)(2)
(d)(3)....................................... 601(c)(3)
(e).......................................... 514
(S) 316 (a)(1)(A).................................... 502, 512
(a)(1)(B).................................... 513
(a)(2)....................................... Not Applicable
(a) last sentence............................ 101
(b).......................................... 508
(S) 317 (a)(1)....................................... 503
(a)(2)....................................... 504
(b).......................................... 1003
(S) 318 (a).......................................... 108
</TABLE>
_____________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------------
PARTIES..................................................................... 1
RECITALS OF THE COMPANY..................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions................................................... 1
Act.................................................................... 2
Additional Amounts..................................................... 2
Affiliate.............................................................. 2
Agent Members.......................................................... 2
Authenticating Agent................................................... 2
Authorized Newspaper................................................... 2
Board of Directors..................................................... 2
Board Resolution....................................................... 3
Business Day........................................................... 3
Commission............................................................. 3
Company................................................................ 3
Company Request........................................................ 3
Conversion Event....................................................... 3
Corporate Trust Office................................................. 3
Default................................................................ 3
Defaulted Interest..................................................... 3
Depositary............................................................. 3
Dollar................................................................. 4
Event of Default....................................................... 4
Exchange Rate.......................................................... 4
Holder................................................................. 4
Indenture.............................................................. 4
interest............................................................... 4
Interest Payment Date.................................................. 4
Judgment Currency...................................................... 4
Maturity............................................................... 4
Officers' Certificate.................................................. 4
- -------------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
-i-
<PAGE>
Opinion of Counsel..................................................... 4
Original Issue Discount Security....................................... 4
Outstanding............................................................ 5
Paying Agent........................................................... 6
Person................................................................. 6
Place of Payment....................................................... 6
Predecessor Security................................................... 6
Redemption Date........................................................ 6
Redemption Price....................................................... 6
Regular Record Date.................................................... 6
Required Currency...................................................... 6
Responsible Officer.................................................... 6
Securities............................................................. 6
Security Custodian..................................................... 7
Security Register...................................................... 7
Special Record Date.................................................... 7
Stated Maturity........................................................ 7
Subsidiary............................................................. 7
Trustee................................................................ 7
Trust Indenture Act.................................................... 7
United States.......................................................... 7
United States Alien.................................................... 7
U.S. Government Obligations............................................ 7
Vice President......................................................... 8
Wholly Owned Subsidiary................................................ 8
Yield to Maturity...................................................... 8
SECTION 102. Incorporation by Reference of Trust Indenture Act............. 8
SECTION 103. Compliance Certificates and Opinions.......................... 8
SECTION 104. Form of Documents Delivered to Trustee........................ 9
SECTION 105. Acts of Holders; Record Dates................................. 10
SECTION 106. Notices, Etc., to Trustee and Company......................... 11
SECTION 107. Notice to Holders; Waiver..................................... 11
SECTION 108. Conflict With Trust Indenture Act............................. 12
SECTION 109. Effect of Headings and Table of Contents...................... 12
SECTION 110. Successors and Assigns........................................ 12
SECTION 111. Separability Clause........................................... 12
SECTION 112. Benefits of Indenture......................................... 13
SECTION 113. Governing Law................................................. 13
SECTION 114. Legal Holidays................................................ 13
SECTION 115. Corporate Obligation.......................................... 13
-ii-
<PAGE>
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................... 13
SECTION 202. Form of Trustee's Certificate of Authentication............... 14
SECTION 203. Securities in Global Form..................................... 14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.......................... 17
SECTION 302. Denominations................................................. 20
SECTION 303. Execution, Authentication, Delivery and Dating................ 20
SECTION 304. Temporary Securities.......................................... 22
SECTION 305. Registration, Registration of Transfer and Exchange........... 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............. 23
SECTION 307. Payment of Interest; Interest Rights Preserved................ 24
SECTION 308. Persons Deemed Owners......................................... 25
SECTION 309. Cancellation.................................................. 26
SECTION 310. Computation of Interest....................................... 26
SECTION 311. CUSIP Numbers................................................. 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................... 26
SECTION 402. Application of Trust Money.................................... 28
SECTION 403. Discharge of Liability on Securities of Any Series............ 29
SECTION 404. Reinstatement................................................. 29
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................. 30
SECTION 502. Acceleration of Maturity; Rescission and Annulment............ 32
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee....................................................... 33
SECTION 504. Trustee May File Proofs of Claim.............................. 34
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
-iii-
<PAGE>
Coupons....................................................... 35
SECTION 506. Application of Money Collected................................ 35
SECTION 507. Limitation on Suits........................................... 36
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.................................................. 36
SECTION 509. Restoration of Rights and Remedies............................ 37
SECTION 510. Rights and Remedies Cumulative................................ 37
SECTION 511. Delay or Omission Not Waiver.................................. 37
SECTION 512. Control by Holders............................................ 37
SECTION 513. Waiver of Past Defaults....................................... 38
SECTION 514. Undertaking for Costs......................................... 38
SECTION 515. Waiver of Stay or Extension Laws.............................. 39
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities........................... 39
SECTION 602. Notice of Defaults............................................ 40
SECTION 603. Certain Rights of Trustee..................................... 41
SECTION 604. Not Responsible for Recitals or Issuance of Securities........ 42
SECTION 605. May Hold Securities........................................... 42
SECTION 606. Money Held in Trust........................................... 42
SECTION 607. Compensation and Reimbursement................................ 42
SECTION 608. Disqualification; Conflicting Interests....................... 43
SECTION 609. Corporate Trustee Required; Eligibility....................... 44
SECTION 610. Resignation and Removal; Appointment of Successor............. 44
SECTION 611. Acceptance of Appointment by Successor........................ 46
SECTION 612. Merger, Conversion, Consolidation or Succession to Business... 47
SECTION 613. Preferential Collection of Claims Against Company............. 47
SECTION 614. Appointment of Authenticating Agent........................... 47
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..... 49
SECTION 702. Preservation of Information; Communications to Holders........ 49
SECTION 703. Reports by Trustee............................................ 50
SECTION 704. Reports by Company............................................ 50
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.......... 50
SECTION 802. Successor Person Substituted.................................. 51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders............ 51
SECTION 902. Supplemental Indentures With Consent of Holders............... 52
SECTION 903. Execution of Supplemental Indentures.......................... 54
SECTION 904. Effect of Supplemental Indentures............................. 54
SECTION 905. Conformity With Trust Indenture Act........................... 54
SECTION 906. Reference in Securities to Supplemental Indentures............ 54
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.................... 54
SECTION 1002. Maintenance of Office or Agency............................... 55
SECTION 1003. Money for Securities Payments to be Held in Trust............. 55
SECTION 1004. Existence..................................................... 56
SECTION 1005. Statement by Officers as to Default........................... 57
SECTION 1006. Waiver of Certain Covenants................................... 57
SECTION 1007. Additional Amounts............................................ 57
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article...................................... 58
SECTION 1102. Election to Redeem; Notice to Trustee......................... 58
SECTION 1103. Selection by Trustee of Securities to be Redeemed............. 59
SECTION 1104. Notice of Redemption.......................................... 59
SECTION 1105. Deposit of Redemption Price................................... 60
SECTION 1106. Securities Payable on Redemption Date......................... 60
SECTION 1107. Securities Redeemed in Part................................... 60
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article...................................... 61
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities......... 61
SECTION 1203. Redemption of Securities for Sinking Fund..................... 62
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called..................... 62
SECTION 1302. Call, Notice and Place of Meetings............................ 62
SECTION 1303. Persons Entitled to Vote at Meetings.......................... 63
SECTION 1304. Quorum; Action................................................ 63
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings...................................................... 64
SECTION 1306. Counting Votes and Recording Action of Meetings............... 64
TESTIMONIUM................................................................. 67
SIGNATURE AND SEALS......................................................... 67
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INDENTURE, dated as of February 1, 1999 between PENNZOIL-QUAKER STATE
COMPANY, a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at
Pennzoil Place, Houston, Texas 77252-2967, and CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION, a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (herein called the
"Trustee"), the office of the Trustee at which at the date hereof its corporate
trust business is principally administered being 600 Travis, Suite 1150,
Houston, Texas 77002, Attention Global Trust Service Department.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned
to them in this Article One and include the plural as well as the singular;
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(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the
date of such computation; and
(3) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act," when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are 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 the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 203.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
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"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in that Place of Payment or the city in which the Corporate
Trust Office is located are authorized or obligated by law or executive order to
close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the Trustee in
Houston, Texas at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is that
indicated in the introductory paragraph of this Indenture.
"Default" means, with respect to the Securities of any series, any
event, act or condition that is, or after notice or the passage of time or both
would be, an Event of Default with respect to Securities of such series.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in a global form, the Person designated
as Depositary by the Company pursuant to Section 301 with respect to the
Securities of such series, until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is
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more than one such person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of that
series.
"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 debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" has the meaning specified in Section 302.
"Holder," when used with respect to any Security, means the Person in
whose name the Security is registered in the Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"interest," when used with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 506.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, the
Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary of the Company, and delivered to the Trustee, which
certificate shall be in compliance with Section 103 hereof.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall
be in compliance with Section 103 hereof.
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"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 502.
"Outstanding," when used with respect to Securities of a series,
means as of the date of determination, all Securities of such series theretofore
authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities that have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes 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 502, (b) the principal amount of a Security
denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined 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
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not
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the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of, premium (if any) or interest
on or any Additional Amounts with respect to any one or more series of
Securities on behalf of the Company.
"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," when used with respect to the Securities of any
series, means the place or places where the principal of, premium (if any) or
interest on or any Additional Amounts with respect to the Securities of such
series are payable as specified in accordance with Section 301 subject to the
provisions of Section 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to the terms
of such Security and this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to the terms of
such Security and this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301, or, if not so specified, the last day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the fifteenth day of the calendar month or the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer," when used with respect to the Trustee, means
any officer of the Trustee with direct responsibility for the administration of
this Indenture and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
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"Securities" has the meaning stated in the first recital 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
issued in global form, the Trustee for Securities of such series, acting in its
capacity as custodian with respect to the Securities of such series, or any
successor entity thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means, as to any Person, a corporation more than 50% of
the outstanding voting stock of which is owned, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person
and one or more other Subsidiaries of such Person. 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided, however, that, in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"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.
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"U.S. Government Obligations" has the meaning specified in
Section 401.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Wholly Owned Subsidiary" means, as to any Person, a corporation all
the outstanding voting stock (other than any directors' qualifying shares) of
which is owned, directly or indirectly, by such Person or by one or more other
Wholly Owned Subsidiaries of such Person, or by such Person and one or more
other Wholly Owned Subsidiaries of such Person. For the purposes of this
definition, "voting stock" means stock which 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.
"Yield to Maturity," when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"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.
"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 Trust
Indenture Act, defined by a Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act and not otherwise
defined herein have the meanings assigned to them therein.
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SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual
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matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding of any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section 105. The record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 1306.
The Company may set a record date for purposes of determining the
identity of Holders of Securities entitled to vote or consent to any action by
vote or consent authorized or permitted under this Indenture. If a record date
is fixed, those Persons who were Holders of Outstanding Securities at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled with respect to such Securities to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not such Persons
continue to be Holders after such record date. Promptly after any record date
is set pursuant to this paragraph, the Company, at its own expense, shall cause
notice thereof to be given to the Trustee in writing in the manner provided in
Section 106 and to the relevant Holders as set forth in Section 107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
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(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) In determining whether the Holders of the requisite principal amount
of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver under this Indenture, the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 at the time the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee for such Securities.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security. Any consent or waiver of the Holder of any Security shall be
irrevocable for a period of six months after the date of execution thereof, but
otherwise any such Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to his Security or
portion of his Security; provided, however, that such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Global
Trust Service Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Corporate
Secretary.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such
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Holder as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such
notice.
In case by reason of the suspension of regular mail service, or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case in which notice to Holders of Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Security, shall affect the
sufficiency of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision hereof required to be
included in this Indenture by any of the provisions of the Trust Indenture Act,
such provision of the Trust Indenture Act shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, such provision of this Indenture shall be
given effect.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether or not so expressed.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person any benefit or any legal or equitable right, remedy or
claim under this Indenture, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent or Security Registrar and the
Holders.
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, but without giving effect
to applicable principles of conflicts of law to the extent the application of
the laws of another jurisdiction would be required thereby.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of, premium (if any) and interest on or any
Additional Amounts with respect to Securities of any series need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
provided that no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith.
ARTICLE TWO
Security Forms
SECTION 201. 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)
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
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this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers of the Company executing
such Securities, as evidenced by their execution of the Securities. If
temporary Securities of any series are issued in global form as permitted by
Section 304, the form thereof shall be established as provided in the preceding
sentence. A copy of the Board Resolution establishing the form or forms of
Securities of any series (or any such temporary global Security) shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security).
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Chase Bank of Texas, National Association
as Trustee
By_____________________________________
Authorized Signatory."
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such 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 Security
in global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee (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 303 or Section 304 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 Security. Subject to
the provisions of Section 303 and, if applicable, Section 304, the Trustee shall
deliver and
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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 Security in global form, 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 Security in global form 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 103 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 Security issued in
global form 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 Security of any
series issued in global form may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder of such series is entitled to
take under this Indenture or the Securities of such series 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 305, except as otherwise specified in or
pursuant to a Board Resolution or supplemental indenture, as contemplated by
Section 301, any permanent global Security shall be exchangeable only as
provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified in or pursuant to a Board Resolution or
supplemental indenture, as contemplated by Section 301, then without unnecessary
delay but in any event not later than the earliest date on which such interests
may be so exchanged, the Company shall deliver to the Trustee definitive
Securities of that series in an aggregate principal amount equal to the
principal amount of such permanent global Security, executed by the Company. On
or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Depositary (which instructions
shall be in writing but need not comply with Section 103 or be accompanied by an
Opinion of Counsel) by the Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate and deliver,
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in exchange for each portion of such permanent global Security, a like aggregate
principal amount of other definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global Security
to be exchanged; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of that series is to be redeemed and ending on the relevant
Redemption Date. Promptly following any such exchange in part, such permanent
global Security marked to evidence the partial exchange shall be returned by the
Trustee to the Security Custodian, the Depositary or such other depositary
referred to above in accordance with the instructions of the Company referred to
above. If a definitive Security is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Security, but will be payable on such Interest Payment Date or
proposed for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
Notwithstanding Section 305, except as otherwise specified in or
pursuant to a Board Resolution or supplemental indenture, as contemplated by
Section 301, transfers of a Security issued in global form 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 Security issued in global form may be transferred in accordance with the rules
and procedures of the Depositary. Securities of any series shall be transferred
to all beneficial owners of a global Security of such series in exchange for
their beneficial interests in that 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 of such series 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
Security Registrar has received a request from the Depositary or the Trustee to
issue Securities of such series in lieu of all or a portion of that global
Security (in which case the Company shall deliver Securities of such series
within 30 days of such request) or (3) the Company determines not to have the
Securities of such series represented by a global Security.
In connection with any transfer of a portion of the beneficial
interest in a global Security of any series to beneficial owners pursuant to
this Section 203, the Security Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the global Security of that
series in an amount equal to the principal amount of the beneficial interest in
the global Security of that series to be transferred, and the Company shall
execute, and the Trustee upon receipt of a Company Order for the authentication
and delivery of Securities of that series shall authenticate and deliver, one or
more Securities of the same series of like tenor and amount.
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In connection with the transfer of all the beneficial interests in a
global Security of any series to beneficial owners pursuant to this Section 203,
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 that series of authorized denominations.
Neither the Company nor the Trustee will have any responsibility or
liability for any aspect of the records kept by the Depositary relating to
Securities of any series or for payments made on account of Securities of any
series, 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 principal amounts, of the
Securities to be issued).
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 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 Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of,
premium (if any) and interest on or any Additional Amounts with respect to any
Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or of the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global Security
which is produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or permanent form.
Permanent global Securities will be issued in definitive form.
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ARTICLE THREE
The Securities
SECTION 301. 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 in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of such series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of such series pursuant to Section 203, 304, 305, 306, 906
or 1107);
(3) whether Securities of such series are to be issuable initially in
temporary global form and whether any Securities of such series are to be
issuable in permanent global form 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 Sections 203 or 305, and the
Depositary for any global Security or Securities of such series;
(4) the manner in which any interest payable on a temporary global
Security of such series on any Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(5) the date or dates on which the principal or premium (if any) of
the Securities of such 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 such 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, if other than as set forth in Section 101, the Regular Record
Date for the interest payable on any Securities on any Interest Payment
Date;
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(7) the place or places where, subject to the provisions of Section
1002, the principal of, premium (if any) and interest on or any Additional
Amounts with respect to the Securities of such 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 such 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 or purchase
Securities of such 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 such series shall be redeemed or purchased in whole or in part pursuant
to such obligation;
(10) the denomination in which any Securities of that series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(11) the currency or currencies (including composite currencies), if
other than Dollars, 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 of, premium (if any) and interest on or any Additional Amounts
with respect to the Securities of such 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 such 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 of, premium (if
any) and interest on or 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 of, premium (if any) and
interest on or any Additional Amounts with respect to the Securities of
such 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 such series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
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(15) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of such series pursuant to Section
401, any additional conditions to discharge pursuant to Section 401 or 403
and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the definitions
set forth in Section 101, Events of Default set forth in Section 501 or
covenants of the Company set forth in Article Ten pertaining to the
Securities of such series;
(17) if the Securities of such series are to be convertible into or
exchangeable for equity securities, other debt securities (including
Securities), warrants 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;
(18) whether any of such Securities will be subject to certain
optional interest rate reset provisions;
(19) the additions or changes, if any, to the Indenture with respect
to such Securities as shall be necessary to permit or facilitate the
issuance of such Securities in bearer form, registered or not registrable
as to principal, and with or without interest coupons; and
(20) any other terms of such series (which terms shall not be
inconsistent with 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 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of any Holder
as such address shall appear in the Security Register.
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 certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. 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
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denominations of $1,000 and any integral multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the 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 ("Exchange Rate"), as such rate
is reported or otherwise made available by the Federal Reserve Bank of New York,
on the applicable issue date for such Securities, of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as in this
Indenture provided and not otherwise.
If the form or terms of the Securities of a series have been
established in or pursuant to one or more Board Resolutions or any other method
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating that,
(a) if the form of such Securities has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities have been established in
conformity with the provisions of this Indenture; and
(c) 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 legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization or other
laws
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relating to or affecting creditors' rights and (ii) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 103 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.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities that are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Securities may determine, as evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and deliver a Company Order requesting the
Trustee to authenticate and deliver and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
the same series of authorized
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denominations. Until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at
one of the offices or agencies maintained pursuant to Section 1002 a register
(the register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Except as set forth in Section 203 or as may be provided pursuant to
Section 301, upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute and deliver a Company Order requesting the Trustee to
authenticate and deliver and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or
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exchange of Securities, other than exchange pursuant to Section 304, 906 or 1107
not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at the close of
business on the day of the mailing of the relevant notice of redemption or (ii)
to register the transfer of or exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and deliver a Company Order requesting the Trustee to authenticate
and deliver and the Trustee shall authenticate and deliver in exchange therefor
a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 306
in lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section 306 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause (1) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
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(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause (2), such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section 307, each Security
delivered under this Indenture, upon registration of transfer of, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, premium (if any)
and (subject to Sections 305 and 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section 309,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be disposed of by the Trustee in accordance with its
customary procedures, unless the Trustee is otherwise directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year compressing twelve 30-day months.
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SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
Satisfaction And Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of a series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities that have been destroyed,
lost or stolen and that have been replaced or paid as provided in
Section 306, and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation;
(B) with respect to all Outstanding Securities of such series
not theretofore delivered to the Trustee for cancellation, the Company
has deposited or caused to be deposited with the Trustee as trust
funds, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, for the purpose money or U.S.
Government Obligations maturing as to principal and interest in such
amounts and at such times as will, together with the income to accrue
thereon, without consideration of any reinvestment thereof, be
sufficient to pay and discharge the entire indebtedness on all
Outstanding Securities of such series not theretofore delivered to the
Trustee for cancellation for principal of, premium (if any) and
interest on or any Additional Amounts and mandatory obligations
pursuant to any sinking fund or analogous provisions with respect to
such Securities to the Stated Maturity or any Redemption Date
contemplated by the penultimate paragraph of this Section 401, as the
case may be; or
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(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding Securities
of such series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture with respect to the Outstanding Securities of such series
have been complied with;
(5) if the conditions set forth in Section 401(1)(A) have not been
satisfied, and unless otherwise specified pursuant to Section 301 for the
Securities of such series, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, satisfaction and discharge
and will be subject to United States federal income tax on the same amount
and in the same manner and at the same time as would have been the case if
such deposit, satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of the
Company's fulfillment of the requirements of clause (1) of this Section 401
or, in so far as clause (5) or (6) of Section 501 is concerned, at any time
in the period ending on the 91st day after the date of the Company's
fulfillment of the requirements of clause (1) of this Section 401 (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
For the purposes of this Indenture, "U.S. Government Obligations"
means direct noncallable obligations of, or noncallable obligations the payment
of principal of and interest on which is guaranteed by, the United States of
America, or to the payment of which obligations or guarantees the full faith and
credit of the United States of America is pledged, or beneficial interests in a
trust the corpus of which consists exclusively of money or such obligations or a
combination thereof.
If any Outstanding Securities of such series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption provisions
or in accordance with any mandatory sinking fund requirement, the trust
agreement referred to in subclause (B) of clause (1)
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of this Section 401 shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section
401, the obligations of the Company to the Trustee under Section 607, the
obligations of the Company to any Authenticating Agent under Section 614 and,
except for a discharge pursuant to subclause (A) of clause (1) of this Section
401, the obligations of the Company under Sections 305, 306, 404, 1001 and 1002
and the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of, premium (if
any) and interest on or any Additional Amounts with respect to Securities of any
series for the payment of which such money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section 403 is specified, as contemplated by Section 301, to
be applicable to Securities of any series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the Outstanding Securities of
such series, the obligation of the Company under this Indenture and the
Securities of such series to pay the principal of, premium (if any) and interest
on and any Additional Amounts with respect to Securities of such series shall
cease, terminate and be completely discharged, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging such satisfaction
and discharge, when
(1) the Company has complied with the provisions of Section 401 of
this Indenture (other than any additional conditions specified pursuant to
Sections 301 and 401(3) and except that the Opinion of Counsel referred to
in Section 401(5) shall state that it is based on a ruling by the Internal
Revenue Service or other change since the date hereof under applicable
Federal income tax law) with respect to all Outstanding Securities of such
series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 403, and
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(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the discharge of the indebtedness
on the Outstanding Securities of such series have been complied with.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 401; 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 U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is 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:
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(1) default in the payment of any interest on or any Additional
Amounts with respect to any Security of that series when such interest or
Additional Amounts become due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of or premium (if any)
on any Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking fund payment,
when and as due by the terms of a Security of that series, and continuance
of such default for a period of 30 days; or
(4) default in the performance or breach of any covenant of the
Company in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section 501 specifically
dealt with or which has expressly been included in this Indenture solely
for the benefit of one or more series of Securities other than that
series), and continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable federal
or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it, of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of
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creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of, premium (if any) or any interest on or any 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, as such Exchange
Rate is certified for customs purposes by the Federal Reserve Bank of New York
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 501, 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 with respect to
the Securities of any series, 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 107 to the Holders of such
series. Promptly after the making of any payment in Dollars as a result of a
Conversion Event with respect to the Securities of any series, the Company shall
give notice in the manner provided in Section 107 to the Holders of such series,
setting forth the applicable Exchange Rate and describing the calculation of
such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (in the case of an Event of Default described
in clause (4) of Section 501) may declare the principal amount (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) of all of the Securities
of the series affected by such default or all series, as the case may be, to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such amount shall
become immediately due and payable. If an Event of Default described in clause
(5) or (6) of Section 501 shall occur, the principal amount of the Outstanding
Securities of all series ipso facto shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder.
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At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article Five, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
(B) the principal of or premium (if any) on any Securities of
that series (or of all series, as the case may be) which have become
due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Securities
(in the case of Original Issue Discount Securities, the Securities'
Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the rate
or rates prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 607;
and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the nonpayment of
the principal of Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on, or any Additional Amounts with respect to, any Security of any series
when such interest or
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Additional Amounts shall have become due and payable and such default
continues for a period of 60 days, or
(2) default is made in the payment of the principal of or premium
(if any) on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal of, premium (if any) and interest on or any Additional
Amounts with respect to such Securities and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal,
premium (if any) and on any overdue interest or Additional Amounts, at the rate
or rates prescribed therefor in such Securities (or in the case of Original
Issue Discount Securities, the Securities' Yield to Maturity), and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and all other
amounts due the Trustee under Section 607.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser amount
in the case of Original Issue Discount Securities) of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal of, premium (if any), interest on or any
Additional Amounts with respect to such Securities) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of principal (or
lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid
in respect of the Securities and to file such other papers or documents as
may be necessary or advisable to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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 proceedings; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without possession of any of the
Securities or the production thereof in any proceeding relating thereto; any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust; after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607, any
recovery of judgment shall be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal of,
premium (if any) or interest on or any Additional Amounts with respect to any
Securities, upon presentation of the Securities, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium (if any) and interest on and any Additional Amounts
with respect to such Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal of, premium (if any), interest on and Additional
Amounts, respectively; and
THIRD: The balance, if any, to the Company.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining 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 any 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 506
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 506 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 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium (if any) and (subject to Section
307) interest on or any Additional Amounts with respect to such Security on the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment on or after such dates, and such rights shall not be impaired
or affected without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article Five or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 501, and with respect to all Securities
the Holders of a majority in principal amount of all Outstanding Securities
shall have the right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, not relating to or arising under such an Event of Default, provided
that in each such case
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Sections 508 and 902, the Holders of a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, and the Holders of a
majority in principal amount of all Outstanding Securities may on behalf of the
Holders of all Securities waive any other past default hereunder and its
consequences, except in each case a default
(1) in the payment of the principal of, premium (if any) or
interest on or any Additional Amounts with respect to any Security, or
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(2) in respect of a covenant or provision hereof that under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant. The
provisions of this Section 514 shall not apply to any suit instituted by the
Company, by the Trustee, by any Holder or group of Holders holding in the
aggregate more than 10% in principal amount of the Outstanding Securities of any
series, or by any Holder for the enforcement of the payment of the principal of,
premium (if any) or interest on or any Additional Amounts with respect to any
Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series,
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(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing
with respect to the Securities of any series, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(1) this clause (1) shall not be construed to limit the
effect of subsection (a) of this Section 601;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series or of all series, determined as
provided in Section 512, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
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(d) Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 601.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any Default or Event of Default
with respect to the Securities of any series, the Trustee shall give notice of
such Default or Event of Default known to the Trustee to all Holders of
Securities of such series in the manner provided in Section 107, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a Default or Event of Default in the payment of the principal of,
premium (if any) or interest on or any Additional Amounts with respect to any
Security of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series; and provided, further,
that in the case of any Default or Event of Default of the character specified
in Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and, except for any Affiliates of the Trustee, the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any Default
or Event of Default with respect to the Securities of any series for which
it is acting as Trustee unless either (1) a Responsible Officer shall have
actual knowledge of such Default or Event of Default or (2) written notice
of such Default or Event of Default shall have been given to the Trustee by
the Company or any other obligor on such Securities or by any Holder of
such Securities; and
(i) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the
use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company
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with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence
or bad faith; and
(3) to indemnify the Trustee and each of its directors, officers,
employees, agents and/or representatives for, and to hold each of them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on each of their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of the Trustees' powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section 607, the Trustee shall have a lien prior to the Securities on
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium (if any) or interest on
or any Additional Amounts with respect to particular Securities.
Any expenses and compensation for any services rendered by the Trustee
after the occurrence of an Event of Default specified in clause (5) or (6) of
Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
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The provisions of this Section 607 and any lien arising hereunder
shall survive the resignation or removal of the Trustee or the discharge of the
Company's obligations under this Indenture and the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section 608, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article Six.
(b) In the event that the Trustee shall fail to comply with the provisions
of subsection (a) of this Section 608 with respect to the Securities of any
series, the Trustee shall, within 10 days after the expiration of such 90-day
period, transmit by mail to all Holders of Securities of that series, as their
names and addresses appear in the Security Register, notice of such failure.
(c) For the purposes of this Section 608, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture Act
and the Trustee shall comply with Section 310(b) of the Trust Indenture Act;
provided, that there shall be excluded from the operation of Section 310(b)(1)
of the Trust Indenture Act with respect to the Securities of any series any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding,
if the requirements for such exclusion set forth in Section 310(b)(1) of the
Trust Indenture Act are met. For purposes of the preceding sentence, the
optional provision permitted by the second sentence of Section 310(b)(9) of
the Trust Indenture Act shall be applicable.
SECTION 609. Corporate Trustee Required; Eligibility.
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 of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50 million and subject to supervision or examination by federal or
state (or the District of Columbia) authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section 609, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 609, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Six.
The Indenture shall always have a Trustee who satisfies the
requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust
Indenture Act.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the resigning Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and such
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successor Trustee or Trustees shall comply with the applicable requirements of
Section 611. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company and accepted appointment in
the manner required by Section 611, any Holder who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of
such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery
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of such supplemental indenture, the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section 611, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article Six.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article Six,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be
subject to Section 311(a) of the Trust Indenture Act to the extent indicated
therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents that shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this
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Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state thereof
or the District of Columbia, having a combined capital and surplus of not less
than $50 million or equivalent amount expressed in a foreign currency and
subject to supervision or examination by federal or state (or the District of
Columbia) authority or authority of such country. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 614, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 614, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section 614.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 614, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 614, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 614.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 614.
If an appointment is made pursuant to this Section 614, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
----------------------------------------
As Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Signatory
Notwithstanding any provision of this Section 614 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register; and (ii) prior to authenticating any
Security denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the Company
pursuant to Section 302.
ARTICLE SEVEN
Holder's Lists And Reports By Trustee And Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date
relating to that series (or, if there is no Regular Record Date relating to that
series, on January 1 and July 1), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of that series as
of such dates, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content, such list to be dated as of a date not more than 15 days prior
to the time such list is furnished; provided, that so long as the Trustee is the
Security Registrar, the Company shall not be required to furnish or cause to be
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furnished such a list to the Trustee. The Company shall otherwise comply with
Section 310(a) of the Trust Indenture Act.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders of each series received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to
it as provided in Section 701 upon receipt of a new list so furnished. The
Trustee shall otherwise comply with Section 310(a) of the Trust Indenture Act.
(b) Holders of Securities may communicate pursuant to Section 312(b) of
the Trust Indenture Act with other Holders with respect to their rights under
this Indenture or under the Securities. The Company, the Trustee, the Security
Registrar and any other Person shall have the protection of Section 312(c) of
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year after the execution of this
Indenture, the Trustee shall transmit by mail to Holders a brief report dated as
of such May 15 that complies with Section 313(a) of the Trust Indenture Act.
The Trustee shall comply with Section 313(b) of the Trust Indenture Act. The
Trustee shall transmit by mail all reports as required by Sections 313(c) and
313(d) of the Trust Indenture Act.
(b) A copy of each report pursuant to subsection (a) of this Section 703
shall, at the time of its transmission to Holders, be filed by the Trustee with
each stock exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any Securities
are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a)
of the Trust Indenture Act.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer Or Lease
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership or trust, shall be
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the due and punctual payment of the
principal of, premium (if any) and interest on or any Additional Amounts
with respect to all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, and
treating any indebtedness that becomes Indebtedness of the Company or a
Subsidiary of the Company as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such transaction,
no Default or Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article Eight and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of such
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
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ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or otherwise secure any series of the Securities or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is adversely
affected by such change in or elimination of such provision; or
(5) to secure the Securities; or
(6) 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 401; 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
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
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(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such other provisions as
may be made shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any Additional
Amounts with respect thereto or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional Amounts
(except as contemplated by Section 801(1) and permitted by Section 901(1)),
or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 502, or change any Place of
Payment where, or the coin or currency or currencies (including composite
currencies) in which, any Security or any premium or any interest thereon
or Additional Amounts with respect thereto is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date),
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
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(3) modify any of the provisions of this Section 902, Section 513
or Section 1006, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made pursuant
to Section 301 without the consent of any Holder) or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause (3) shall not be deemed to
require the consent of any Holder with respect to changes in the references
to "the Trustee" and concomitant changes in this Section 902 and Section
1006, or the deletion of this proviso, in accordance with the requirements
of Section 611(b) and Section 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section
902 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article
Nine, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine
shall conform to the requirements of the Trust Indenture Act as then in effect.
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SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article Nine may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
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.
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SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of, premium (if any) or interest on or any Additional Amounts with
respect to any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal, premium (if any) or interest or any Additional Amounts so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of, premium (if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal of, premium
(if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 1003, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of,
premium (if any) or interest on or any Additional Amounts with respect to
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
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Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium (if any)
or interest on or any Additional Amounts with respect to any Security of any
series and remaining unclaimed for three years after such principal of, premium
(if any) or interest on or any Additional Amounts with respect to any Securities
have become due and payable shall, unless otherwise required by mandatory
provisions of applicable escheat, or abandoned or unclaimed property law, be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in The Borough of Manhattan, The
City of New York and in such other Authorized Newspapers as the Trustee shall
deem appropriate, notice that such money remains unclaimed and that, after a
date specified herein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will,
unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, complying with
Section 314(a)(4) of the Trust Indenture Act and stating that a review of the
activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and whether
or not to the best of their knowledge, based upon such review, the Company is in
default in the performance, observance or fulfillment of any of its covenants
and other obligations under this Indenture, and if the Company shall be in
default, specifying each such default known to them and the nature and status
thereof. One of the officers signing the Officers' Certificate delivered
pursuant to this Section 1005 shall be the principal executive, financial or
accounting officer of the Company.
For purposes of this Section 1005, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
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SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1001 through 1005, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal amount
of the Outstanding Securities of all series affected by such omission (acting as
one class) shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 1007. 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 premium (if any) or interest on 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 1007 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 1007 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company shall furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal 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 1007. 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
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of or in connection with actions taken or omitted by any of them in reliance on
any Officers' Certificate furnished pursuant to this Section 1007.
ARTICLE ELEVEN
Redemption Of Securities
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article Eleven.
SECTION 1102. Election to Redeem; Notice to Trustee.
Unless otherwise provided with respect to the Securities of a series
as contemplated by Section 301, the election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, within a reasonable period prior to the Redemption Date fixed
by the Company, notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and 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.
The Trustee shall promptly notify the Company and the Security
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 all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be
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redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
107 to each Holder of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Securities to be redeemed. Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities which are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(and any Additional Amounts) to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and premium (if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and Stated Maturity, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Unless otherwise specified as contemplated by Section 301, 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 represented thereby shall be deemed to be satisfied. Section
309 shall apply to all Securities so delivered.
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ARTICLE TWELVE
Sinking Funds
SECTION 1201. Applicability of Article.
The provisions of this Article Twelve shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". 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 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and 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 payment shall be
reduced accordingly.
SECTION 1203. 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 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 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 1104. Such notice having
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been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Meetings of Holders of Securities
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article Thirteen to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1301, to be held
at such time and at such place in Houston, Texas, in The Borough of Manhattan,
The City of New York, or in any other location as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
107, not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1301, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in Houston, Texas, in The Borough of Manhattan, The City of
New York, or in London, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this Section
1302.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote
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at such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1305(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage that is less
than a majority in aggregate principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
Except as limited by the proviso to Section 902, any resolution passed
or decision taken at any meeting of Holders of Securities of any series duly
held in accordance with this Section 1304 shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner specified
in Section 105 and the appointment of any proxy shall be proved in the manner
specified in Section 105. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 105 or other proof.
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(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1302(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
PENNZOIL-QUAKER STATE COMPANY
[CORPORATE SEAL] By /s/ David P. Alderson II
------------------------------------
Name: David P. Alderson II
Title: Group Vice President-
Finance and Treasurer
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
[CORPORATE SEAL] By /s/ Letha Glover
------------------------------------
Name: Letha Glover
Title: Assistant Vice President and
Trust Officer
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EXHIBIT 4.2
PENNZOIL-QUAKER STATE COMPANY
OFFICERS' CERTIFICATE DELIVERED PURSUANT TO
SECTION 301 OF THE INDENTURE DATED AS OF FEBRUARY 1, 1999
The undersigned, the Group Vice President, Chief Financial Officer and
Treasurer and the Corporate Secretary of Pennzoil-Quaker State Company (the
"Company"), hereby certify that:
1. This Certificate is delivered to Chase Bank of Texas, National
Association (the "Trustee"), as trustee, pursuant to Section 301 of the
Indenture dated as of February 1, 1999 between the Company and the Trustee in
connection with the Company Order dated March 30, 1999 (the "Order") for the
authentication and delivery by the Trustee of $200,000,000 aggregate
principal amount of 6 3/4% Notes due 2009 ("Notes") and $400,000,000
aggregate principal amount of 7 3/8% Debentures due 2029 ("Debentures") and,
together with the Notes, the "Debt Securities").
2. The undersigned have read Sections 103, 301 and 303 of the Indenture and
the definitions in the Indenture relating thereto.
3. The statements made herein are based either upon the personal knowledge
of the persons making this Certificate or on information, data and reports
furnished to such persons by the officers, counsel, department heads or
employees of the Company who have knowledge of the facts involved.
4. The undersigned have examined the Order, and they have examined the
covenants, conditions and provisions of the Indenture relating thereto.
5. In the opinion of the persons making this Certificate, they have made
such examination or investigation as is necessary to enable them to express
an informed opinion as to whether or not all conditions provided for in the
Indenture with respect to the Order have been complied with.
6. All conditions precedent provided in the Indenture to the authentication
by the Trustee of $200,000,000 aggregate principal amount of Notes and
$400,000,000 aggregate principal amount of Debentures have been complied
with, and such Debt Securities may be delivered in accordance with the Order
as provided in the Indenture.
7. The terms of the Debt Securities of each series (including the Form of
Debt Securities) shall be as set forth in the resolutions duly adopted by the
Pricing Committee of the Board of Directors of the Company as of March 25,
1999 (a copy of such resolutions being attached hereto as Exhibit A).
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto executed this Certificate
as of March 30, 1999.
/s/ David P. Alderson II
------------------------------------------------
David P. Alderson II
Group Vice President, Chief Financial Officer
and Treasurer
/s/ Linda Condit
------------------------------------------------
Linda Condit
Corporate Secretary
<PAGE>
Exhibit A
PENNZOIL-QUAKER STATE COMPANY
Written Consent of Sole Member
of the Pricing Committee
of the Board of Directors
Pursuant to the provisions of Section 141(f) of the Delaware General
Corporation Law, the undersigned, being the sole member of the Pricing Committee
of the Board of Directors of Pennzoil-Quaker State Company, a Delaware
corporation (the "Company"), entitled to act upon the following resolutions,
hereby consents to the adoption of, approves, confirms and adopts the
resolutions attached hereto, such resolutions to be in full force and effect as
of the date hereof as if duly adopted at a special meeting of the Pricing
Committee of the Board of Directors of the Company called and held for the
purpose of considering and acting upon the same.
IN WITNESS WHEREOF, the undersigned has hereunder subscribed his name as of
the 25th day of March, 1999.
/s/ James L. Pate
----------------------------------
James L. Pate
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<PAGE>
WHEREAS, pursuant to resolutions adopted by the Board of Directors of the
Company on December 14, 1998, this Pricing Committee was authorized, empowered
and directed, for and on behalf of the Company, to determine any and all terms
and conditions of the sale of the Securities (as defined below) and to take all
other actions necessary to effectuate the registration, issuance and sale of the
Offered Securities.
RESOLVED, that the form, terms and provisions of the Company's Registration
Statement on Form S-3 (Registration No. 333-65909), as amended, as filed with
the Securities and Exchange Commission and as declared effective as of January
25, 1999, relating to $1,000,000,000 principal amount of Securities of the
Company ("Securities"), as executed for and on behalf of the Company, be and
hereby are in all respects approved; and further
RESOLVED, that the forms, terms and provisions of the Prospectus included
in such registration statement and the Prospectus Supplement dated March 25,
1999 supplementary thereto ("Prospectus Supplement") and relating to
$200,000,000 principal amount of 6 3/4% Notes due April 1, 2009 (the "Notes")
and $400,000,000 principal amount of 7 3/8% Debentures due April 1, 2029 of the
Company (the "Debentures" and, with the Notes, the "Debt Securities") be and
hereby are in all respects approved; and further
RESOLVED, that the form, terms and provisions of the Underwriting Agreement
relating to the Debt Securities between the Company and the underwriters named
therein ("Underwriting Agreement") presented with these resolutions be and
hereby are in all respects approved in the form executed; and further
RESOLVED, that in accordance with the provisions of Section 301 of the
Indenture dated as of February 1, 1999 (the "Indenture") between the Company and
Chase Bank of Texas, National Association, as trustee ("Trustee"), there be and
hereby is created and established two series of debt securities of the Company
designated as "6 3/4% Notes due April 1, 2009" limited in aggregate principal
amount to $200,000,000 and "7 3/8% Debentures due 2029" limited in aggregate
principal amount to $400,000,000, the terms of which shall be as set forth in
Annex A hereto; and further
RESOLVED, that the form of registered Debt Securities without coupons and
the form of Trustee's authentication certificate to be endorsed on all Debt
Securities shall be substantially in the respective forms set forth in Annex A
hereto, with such changes and completions as the officers of the Company
executing such Debt Securities shall approve; and further
RESOLVED, that the entire principal amount of Notes and Debentures may be
executed at one time or from time to time by the Company and delivered to the
Trustee and shall be authenticated by the Trustee and delivered to or upon the
order of the Company signed by the Chairman of the Board, the President or any
Vice President and the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company, such Debt Securities so authenticated and
delivered thereby entitling the holders thereof to such rights, and subjecting
them to such limitations, as set forth in the Indenture and Annex A hereto; and
the officers of the
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Company hereinafter specified be and hereby are authorized, for and on behalf of
the Company, to cause to be executed, issued, authenticated and delivered Notes
and Debentures in an aggregate principal amount not to exceed $200,000,000 and
$400,000,000, respectively; and further
RESOLVED, that the Debt Securities, whether in definitive or temporary
form, shall be signed on behalf of the Company by the Chairman of the Board, the
President or any Vice President of the Company, under the corporate seal of the
Company attested by the Secretary or an Assistant Secretary; provided, that the
signature of any such officer upon the Debt Securities may be in facsimile or
may be imprinted or otherwise reproduced on the Debt Securities, the Company
hereby adopting as binding upon it the facsimile signature of any person who
shall be any such officer of the Company at the time of the execution of the
Debt Securities, irrespective of the date as of which the same shall be executed
or authenticated and notwithstanding the fact that at the time the Debt
Securities shall be authenticated or delivered or disposed of he shall have
ceased to be such officer of the Company; and provided, that the seal of the
Company may be in facsimile and may be impressed, affixed, imprinted or
otherwise reproduced on the Debt Securities; and further
RESOLVED, that the Company adopt as and for its signature on any of the
Debt Securities authorized to be executed on its behalf pursuant to the
provisions of these resolutions the facsimile signatures of James L. Pate, as
Chairman of the Board, and Linda F. Condit, Corporate Secretary, respectively,
when used and imprinted on the Debt Securities, and the Company hereby adopts as
and for its corporate seal a facsimile thereof when used and imprinted on the
Debt Securities; and further
RESOLVED, that any person, firm or corporation at any time, unaffected by
any amendment, modification or rescission of this resolution, may rely on the
facsimile signatures authorized by the preceding resolution, when imprinted on
the Debt Securities by an officer or employee of the Company, whether or not
authorized by the preceding resolution, by use of any signature machine of the
Company, or when imprinted on the Debt Securities by an officer or employee of
American Bank Note Company, whether or not authorized by it, by use of any
signature machine of such company; and any such facsimile so relied upon shall
be valid and effectual and binding on the Company as if the same had been
executed manually or by a duly authorized officer or agent of the Company acting
on its behalf; and further
RESOLVED, that the officers of the Company be and hereby are authorized and
empowered, for and on behalf of the Company, acting severally or jointly, to
sign, seal and deliver such papers and documents and to do or cause to be done
any or all such acts and things as they may deem necessary, appropriate or
desirable in order to enable the Company fully and promptly to perform all of
its obligations under the Underwriting Agreement; and further
RESOLVED, that the proceeds from the sale of the Debt Securities be applied
in the manner set forth under the caption "Use of Proceeds" in the Prospectus
Supplement; and further
RESOLVED, that the officers of the Company be and hereby are authorized and
empowered, for and on behalf of the Company, to take any and all action that any
such officer may
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<PAGE>
deem necessary, appropriate or desirable in connection with making the Notes and
the Debentures eligible for trading through The Depository Trust Company (the
"DTC") or any other securities clearing agency or depository, including, without
limitation, negotiating, entering into, executing and delivering a letter
agreement with the DTC or any such agency or depository relating to the
aforesaid; and further
RESOLVED, that the officers of the Company be and hereby are authorized to
perform and to do such acts and things and to execute and file such other
documents, as in their opinion may be necessary, desirable or appropriate in
order to carry out the purposes of the foregoing resolutions.
4
<PAGE>
ANNEX A
PENNZOIL-QUAKER STATE COMPANY
6 3/4% Notes due 2009
7 3/8% Debentures due 2029
Two series of Securities are hereby established pursuant to Section 301 of
the Indenture dated as of February 1, 1999 (the "Indenture") between Pennzoil-
Quaker State Company (the "Company") and Chase Bank of Texas, National
Association (the "Trustee") as follows:
1. Each capitalized term used but not defined herein shall have the meaning
assigned to such term in the Indenture.
2. The title of the 6 3/4% Notes due 2009 shall be "6 3/4% Notes due 2009"
(the "Notes"), and the title of the 7 3/8% Debentures due 2029 shall be "7 3/8%
Debentures due 2029" (the "Debentures" and, together with the Notes, the "Debt
Securities").
3. The limit upon the aggregate principal amount of the Notes and the
Debentures that may be authenticated and delivered under the Indenture (except
for Debt Securities of such series authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Debt Securities of such
series pursuant to Section 304, 305, 306, 906 or 1107 of the Indenture and
except for any Debt Securities of such series that, pursuant to Section 303 of
the Indenture, are deemed never to have been authenticated and delivered
thereunder) is $200,000,000 and $400,000,000, respectively.
4. The date on which the principal of the Notes and the Debentures is
payable shall be April 1, 2009 and April 1, 2029, respectively.
5. The rate at which the Notes shall bear interest shall be 6 3/4% per
annum, and the rate at which the Debentures shall bear interest shall be 7 3/8%
per annum. The date from which interest shall accrue for the Debt Securities of
each series shall be March 30, 1999. The Interest Payment Dates on which such
interest shall be payable shall be April 1 and October 1 of each year,
commencing October 1, 1999. The Regular Record Date for interest payable on the
Debt Securities on any Interest Payment Date shall be the March 15 or September
15, as the case may be, next preceding such Interest Payment Date. No additional
amounts with respect to the Debt Securities shall be payable.
6. The place or places where the principal of, premium (if any) on and
interest on the Debt Securities shall be payable shall be the office or agency
of the Company maintained for that purpose, initially the Corporate Trust Office
of the Trustee, in Houston, Texas, and any other office or agency maintained by
the Company for such purpose or, at the option of the Holder, in the Borough of
Manhattan, The City of New York, New York. Payments in respect of Debt
Securities in the form of global Securities (including principal, premium, if
any, and interest) shall be made by wire transfer of immediately available funds
to the accounts specified by the Holder of such Debt
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Securities. In all other cases, at the option of the Company, payment of
interest on any Debt Securities may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register for such Debt Securities.
7. The Debt Securities are subject to redemption, in whole or in part, at
any time and from time to time, at the option of the Company, upon not less than
30 nor more than 60 days' prior notice as provided in the Indenture, on any
Redemption Date at a Redemption Price equal to the greater of (i) 100% of the
principal amount of the Debt Securities to be redeemed and (ii) the sum of the
present values of the Remaining Scheduled Payments thereon, discounted to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 25 basis points for the Notes
and 35 basis points for the Debentures, in each case plus accrued interest
thereon to the Redemption Date. Notice of intention to redeem the Debt
Securities in whole or in part shall be given in accordance with Section 1104 of
the Indenture.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semi-annual equivalent yield to maturity (computed as of the
second Business Day immediately preceding such Redemption Date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes or the Debentures that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes or the Debentures, as applicable.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
"Comparable Treasury Price" means, with respect to any Redemption Date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) as of the third
Business Day preceding such Redemption Date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such Business Day, (a) the average
of the Reference Treasury Dealer Quotations for such Redemption Date, after
excluding the highest and lowest of such Reference Treasury Dealer Quotations,
or (b) if the Company obtains fewer than three such Reference Treasury Dealer
Quotations, the average of all such Quotations.
"Reference Treasury Dealer" means each of Chase Securities Inc. (and its
successors), Lehman Brothers, Inc. (and its successors), Merrill Lynch, Pierce,
Fenner & Smith Incorporated (and its successors) and, at the option of the
Trustee two other nationally recognized investment banking firms that are
Primary Treasury Dealers specified from time to time by the Company; provided,
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<PAGE>
however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Company shall substitute therefor another nationally recognized investment
banking firm that is a Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Company, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Company by such Reference Treasury Dealer as of 3:30 p.m., New
York time, on the third Business Day preceding such Redemption Date.
"Remaining Scheduled Payments" means, with respect to each Debt Security to
be redeemed, the remaining scheduled payments of the principal thereof and
interest thereon that would be due after the related Redemption Date but for
such redemption; provided, however, that, if such Redemption Date is not an
Interest Payment Date with respect to such Debt Security, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the amount of
interest accrued thereon to such Redemption Date.
8. The Company shall have no obligation to redeem, purchase or repay Debt
Securities pursuant to any mandatory redemption, sinking fund or analogous
provisions or at the option of a Holder thereof.
9. The Depository Trust Company is hereby designated as the Depositary with
respect to any global Debt Securities.
10. In addition to the conditions set forth in Section 401 of the
Indenture, the right of the Company to satisfy the Indenture to the extent set
forth in Section 401 of the Indenture shall be subject to the condition that the
Company has delivered to the Trustee an Opinion of Counsel (as defined in the
Indenture) that the satisfaction and discharge pursuant to Section 401 of the
Indenture will not cause the Holders of the Debt Securities to recognize income,
gain or loss for United States federal income tax purposes.
In addition to the conditions set forth in Section 403 of the Indenture,
the right of the Company to satisfy the Indenture with respect to the Debt
Securities to the extent set forth in Section 403 of the Indenture shall be
subject to the conditions that the Company shall have received from, or there
shall have been published by, the United States Internal Revenue Service a
ruling to the effect that the satisfaction and discharge to the extent set forth
in Section 403 of the Indenture will not cause the Holders of the Debt
Securities to recognize income, gain or loss for United States federal income
tax purposes.
11. So long as any of the Debt Securities are outstanding, the Company will
not, and will not permit any Material Subsidiary to pledge, mortgage,
hypothecate or grant a security interest in, or permit any Lien upon, any
property or assets owned by the Company or any Material Subsidiary to secure any
Indebtedness, without making effective provision whereby the Debt Securities
shall (so long as such other Indebtedness shall be so secured) be equally and
ratably
A-3
<PAGE>
secured with any and all such other Indebtedness and any other indebtedness
similarly entitled to be equally and ratably secured (including any other series
of outstanding Senior Debt Securities under the Indenture); provided, however,
that the foregoing restrictions shall not apply to nor prevent the creation or
existence of
(a) any Lien upon any property or assets (together with receivables and
intangibles related to such property or assets and the cash proceeds thereof)
created at the time of the acquisition or construction of such property or
assets by the Company or any Material Subsidiary or within one year after such
time to secure all or a portion of the purchase price or construction costs (or
Indebtedness incurred to finance such purchase price or construction costs) for
such property or assets;
(b) any Lien upon any property or assets (together with receivables and
intangibles related to such property or assets and the cash proceeds thereof),
existing thereon at the time of the acquisition thereof by the Company or any
Material Subsidiary (whether or not the obligations secured thereby are assumed
by the Company or any Subsidiary);
(c) any Lien upon any property or assets (together with receivables and
intangibles related to such property or assets and the cash proceeds thereof),
whenever acquired, of any Person that becomes a Material Subsidiary after the
date hereof, provided that (i) the instrument creating such Lien shall be in
effect prior to the time such Person becomes a Material Subsidiary and (ii) such
Lien shall only apply to properties or assets (together with receivables and
intangibles related to such property or assets and the cash proceeds thereof)
owned by such Person at the time it becomes a Material Subsidiary or thereafter
acquired by it from sources other than the Company or another Material
Subsidiary;
(d) any extension, renewal or refunding of any Lien permitted by clauses
(a), (b) or (c) above on substantially the same property or assets theretofore
subject thereto;
(e) any Lien in favor of the Company and any Lien created or assumed by a
Subsidiary in favor of another Subsidiary;
(f) any Lien created or assumed by the Company or a Material Subsidiary in
connection with the issuance of debt securities the interest on which is
excludable from gross income of the holder of such security pursuant to the
Internal Revenue Code of 1986, as amended, for the purpose of financing, in
whole or in part, the acquisition or construction of property or assets to be
used by the Company or a Subsidiary;
(g) any Lien existing in connection with any sale, securitization or
monetization of receivables or other rights to receive payment of the Company
and any of its Subsidiaries, so long as such sale, securitization or
monetization is treated as a sale pursuant to applicable financial accounting
standards; or
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<PAGE>
(h) any Lien securing any Indebtedness in an amount which, together with
all other Indebtedness secured by a Lien that is not otherwise permitted under
the terms of clauses (a), (b), (c), (d), (e) or (f) above does not at the time
of the incurrence of the Indebtedness so secured exceed 5% of Consolidated Net
Tangible Assets of the Company and its Material Subsidiaries as shown on a
balance sheet as of the date of the balance sheet contained in the Company's
most recent periodic report in Form 10-K or 10-Q filed with the Commission prior
to the date of such incurrence.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under generally accepted accounting
principles, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with generally accepted accounting principles.
"Consolidated Net Tangible Assets" means the total amount of assets,
including all cash received from asset sales during the 12 months prior to the
date of determination to the extent that such cash has not been reinvested, of
the Company and its Subsidiaries on a consolidated basis (less applicable
reserves and other properly deductible items) after deducting therefrom (a) all
current liabilities (excluding any which are, by their terms, extendable or
renewable at the option of the obligor thereon to a time more than 12 months
after the time as of which the amount thereof is being computed) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt premium or discount
and expense and other like intangible assets, determined in accordance with
generally accepted accounting principles.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or
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<PAGE>
services (excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness or others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Lien" means (x) with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset and (b) the interest of a vendor or a lessor under any
conditional sale agreement or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating
to such asset, and (y) the interest of the lessor under a lease incurred after
the date hereof with a term of three years or more that should be, in accordance
with generally accepted accounting principles, recorded as a capital lease.
"Material Subsidiary" means each of (a) any Subsidiary of the Company whose
percentage of the Consolidated Net Tangible Assets represented by such
Subsidiary's portion of such Consolidated Net Tangible Assets (after
intercompany eliminations) exceeds 10% as of the end of the most recently-
completed fiscal quarter, and (b) any other Subsidiary which at the time shall
have been designated by the Company as a Material Subsidiary in an officers'
certificate delivered to the Trustee for such purpose.
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Subsidiary" means, with respect to the Company at any date, any
corporation, limited liability company, partnership, association or other entity
the accounts of which would be consolidated with those of the Company in the
Company's consolidated financial statements if such financial statements were
prepared in accordance with generally accepted accounting principles as of such
date, as well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise controlled, by the Company or one or more subsidiaries of
the Company or by the Company and one or more subsidiaries of the Company.
12. The Debt Securities and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit 1 hereto (the "Form of Debt
Securities").
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<PAGE>
EXHIBIT 1
[FACE OF SECURITY]
[This Security is a global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depository or a
nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee only
in the limited circumstances described in or pursuant to the Indenture, and no
transfer of this Security (other than a transfer of this Security as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository) may be registered except
in such limited circumstances. The Depository Trust Company, a New York
corporation ("DTC"), shall act as the Depositary until a successor shall be
appointed by the Company and the Security Registrar. Unless this certificate is
presented by an authorized representative of DTC to the Issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as may be requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.]*
Number ___________ $___________
PENNZOIL-QUAKER STATE COMPANY
[___% NOTE DUE 2009] [___% DEBENTURE DUE 2029]
CUSIP ___________
PENNZOIL-QUAKER STATE COMPANY, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company," which
includes any successor Person under the Indenture hereinafter referred to), FOR
VALUE RECEIVED, hereby PROMISES TO PAY TO _________________________________, or
registered assigns, the principal sum of ______________________ Dollars[, or
such greater or lesser amount as is indicated on the Schedule of Exchanges of
Securities hereto,]* on _____________, [2009] [2029], and to pay interest
thereon from _____________, 1999 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on
_____________ and _____________ in each year, commencing ______________, 1999,
at the rate of [___%] [___%] per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually
- -------------
* To be included in a global Security.
AA-1
<PAGE>
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest payment, which shall be the _____________
or _____________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
Payment of the principal of and premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in Houston, Texas, or, at the option of the Holder, in the Borough of
Manhattan, The City of New York, New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts. Payments in respect of this Security, if in the
form of a global Security, shall be made by wire transfer of immediately
available funds to the accounts specified by the Holder of this Security. In
all other cases, at the option of the Company, payment of interest on this
Security may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
AA-2
<PAGE>
Dated:
PENNZOIL-QUAKER STATE COMPANY
[SEAL] By:
---------------------------------
Name:
Title:
Attest:
- ---------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Trustee
By _________________________
Authorized Officer
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<PAGE>
[REVERSE OF SECURITY]
PENNZOIL-QUAKER STATE COMPANY
[___% NOTE DUE 2009] [___% DEBENTURE DUE 2029]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of February 1, 1999 (herein called the
"Indenture"), between the Company and Chase Bank of Texas, National Association
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
[$___,000,000] [$___,000,000].
The Securities of this series shall be subject to redemption at the
option of the Company prior to maturity as set forth pursuant to the Indenture.
The Securities of this series shall not be subject to a sinking fund
requirement.
The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.
If an Event of Default with respect to the Securities of this series
shall occur and be continuing, the principal of all the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of all
Securities at the time Outstanding to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of this series at the time Outstanding, on
behalf of the Holders of all Securities of this series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series shall
have made written requests, and
AA-4
<PAGE>
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of the Outstanding Securities of this series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations do not apply
to a suit instituted by the Holder hereof for the enforcement of payment of the
principal of or interest on this Security on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security is overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - _____________
TEN ENT - as tenants by entireties (Cust)
JT TEN - as joint tenants with
right of survivorship and not as Custodian for____________________
tenants in common (Minor)
under Uniform Gifts to Minors
Act of_________________________
(State)
Additional abbreviations may also be used though not in the above list.
-------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- -------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
- -------------------------------------------------------------------------------
to transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated
------------------------------ ------------------------------
Registered Holder
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<PAGE>
SCHEDULE OF EXCHANGES OF SECURITIES*
The following exchanges of a part of this global Security for other Securities
have been made:
<TABLE>
<CAPTION>
Amount of Principal Amount
Amount of Increase in of this Global Signature of
Decrease in Principal Principal Amount Security following authorized officer
Date of Amount of this of this such decrease of Trustee or
Exchange Global Security Global Security (or increase) Security Custodian
- -------------- --------------------- ------------------- --------------------- -------------------
<S> <C> <C> <C> <C>
</TABLE>
________________
* To be included in a global Security.
AA-7
