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As filed with the Securities And Exchange Commission on May 6, 1998
Registration No.333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BARRETT RESOURCES CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
Delaware
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(State or Other Jurisdiction of Incorporation or Organization)
84-0832476
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(I.R.S. Employer Identification No.)
1515 Arapahoe Street, Tower 3, Suite 1000
Denver, Colorado 80202
(303) 572-3900
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(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
Eugene A. Lang, Jr., Esquire, Senior Vice President and General Counsel
Barrett Resources Corporation
1515 Arapahoe Street, Tower 3, Suite 1000
Denver, Colorado 80202
(303) 572-3900
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(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
Copies to:
Alan L. Talesnick, Esquire
Francis B. Barron, Esquire
Bearman Talesnick & Clowdus
Professional Corporation
1200 Seventeenth Street
Denver, Colorado 80202
(303) 572-6500
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective as determined by market
conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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Proposed
Title of each class maximum Amount of
of securities to aggregate offering registration
be registered price (1)(2) fee(5)
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Debt Securities (3)
Common Stock (3)
Preferred Stock (3)
Depositary Shares
representing
Preferred Stock (3)(4)
Warrants (3)
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TOTAL $500,000,000 $147,500
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(1) In no event will the aggregate maximum offering price of all securities
registered under this Registration Statement exceed $500,000,000, or its
equivalent if some or all of the securities are denominated in one or more
foreign currencies. Such amount includes any consideration to be received
for securities issued upon exercise of the Warrants. Any securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
(2) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.D. of Form S-3 and (b) will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder.
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(3) Subject to footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock, Preferred Stock, Depositary
Shares, Warrants and Debt Securities as may be sold, from time to time, by
Barrett Resources Corporation. Barrett Resources Corporation also is
registering hereunder an indeterminate number of shares of Common Stock,
Preferred Stock and Debt Securities as may be issued upon conversion or
exchange of any Debt Securities, Preferred Stock or Depositary Shares or
upon exercise of the Warrants registered hereby. If any Debt Securities
are being issued at an original issue discount, then the offering price
shall be in such greater principal amount as shall result in an aggregate
initial offering price not to exceed $500,000,000, less the dollar amount
of any securities previously issued hereunder.
(4) To be represented by Depositary Receipts representing a fractional interest
in a share of Preferred Stock.
(5) Fee calculated pursuant to Rule 457(o).
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that the Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities And Exchange Commission but has not yet become effective. These
securities may not be sold nor may offers to buy be accepted prior to the time
the registration statement becomes effective. This prospectus shall not
constitute an offer to sell or the solicitation of an offer to buy nor shall
there be any sale of these securities in any State in which such offer,
solicitation or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED MAY 6, 1998
PROSPECTUS
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$500,000,000
BARRETT RESOURCES CORPORATION
DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
WARRANTS
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Barrett Resources Corporation ("Barrett" or the "Company") may offer from
time to time (i) its unsecured debt securities ("Debt Securities") consisting of
debentures, notes and/or other evidences of unsecured indebtedness in one or
more series, which may be convertible into shares of the Company's Common Stock,
(ii) shares of its common stock, par value $.01 per share ("Common Stock"),
(iii) shares of its preferred stock, par value $.001 per share ("Preferred
Stock"), which may be issued in the form of depositary shares evidenced by
depositary receipts ("Depositary Shares"), (iv) warrants to purchase Common
Stock, Preferred Stock, Debt Securities or any combination thereof ("Warrants",
and together with the Common Stock, Preferred Stock and Debt Securities,
"Securities"), or (v) any combination of the foregoing, at an aggregate initial
offering price not to exceed $500,000,000, or its equivalent if some or all of
the Securities are denominated in one or more foreign currencies, at prices and
on terms to be determined at or prior to the time of sale in light of market
conditions at the time of sale.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF OFFERED SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
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Specific terms of the particular Securities in respect of which this
Prospectus is being delivered will be set forth in one or more accompanying
Prospectus Supplements (each a "Prospectus Supplement"), together with the terms
of the offering of the Securities and the initial price and the net proceeds to
the Company from the sale thereof. The Prospectus Supplement will set forth with
regard to the particular Securities, without limitation, the following: (i) in
the case of Debt Securities, the specific designation, aggregate principal
amount, ranking as senior debt or subordinated debt, authorized denomination,
maturity, rate or method of calculation of interest and dates for payment
thereof, any exchangeability, conversion, redemption, prepayment or sinking fund
provisions, the currency or currencies or currency unit or currency units in
which principal, premium, if any, or interest, if any, is payable, any
modifications of or additions to the covenants described in this Prospectus and
any other specific terms thereof; (ii) in the case of Preferred Stock, the
designation, number of shares, liquidation preference per share, initial public
offering price, dividend rate (or method of calculation thereof), dates on which
dividends will be payable and dates from which dividends will accrue, any
redemption or sinking fund provisions, any conversion or exchange rights, any
other relative rights and whether the Company has elected to offer fractional
interests in the Preferred Stock in the form of Depositary Shares evidenced by
depositary receipts; (iii) in the case of Common Stock, the number of shares of
Common Stock and the terms of the offering and sale thereof; and (iv) in the
case of Warrants, the number and terms thereof, the designation and the number
of Securities issuable upon their exercise, the exercise price and duration of
the exercise period, the terms of the offering and sale thereof and, where
applicable, the detachability and other terms thereof. The amounts payable by
the Company in respect of Debt Securities may be calculated by reference to the
value, rate or price of one or more specified commodities, currencies or indices
to the extent set forth in the Prospectus Supplement. The Prospectus Supplement
also will contain information, where applicable, about certain United States
federal income tax considerations relating to the Securities covered by the
Prospectus Supplement.
The outstanding Common Stock, and associated Preferred Stock Purchase
Rights (the "Rights"), are listed on the New York Stock Exchange under the
symbol "BRR." Any Common Stock offered will be listed, subject to notice of
issuance, on such exchange. The applicable Prospectus Supplement will contain
information about any listing of the other Securities on a securities exchange.
The Company may sell the Securities directly, through agents designated
from time to time or through underwriters or dealers. If any agents of the
Company or any underwriters or dealers are involved in the sale of the
Securities, the names of such agents, underwriters or dealers, any applicable
commissions and discounts, and the net proceeds to the Company will be set forth
in the applicable Prospectus Supplement. See "Plan of Distribution" for possible
indemnification arrangements for agents, underwriters and dealers.
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The date of this Prospectus is , 1998.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFER CONTAINED
HEREIN. THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT DOES NOT CONSTITUTE AN
OFFER IN ANY JURISDICTION IN WHICH SUCH OFFER MAY NOT LAWFULLY BE MADE.
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CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE ADDITIONAL
SECURITIES, INCLUDING OVER-ALLOTMENT, STABILIZING AND SHORT-COVERING
TRANSACTIONS IN SUCH ADDITIONAL SECURITIES, AND THE IMPOSITION OF A PENALTY BID,
IN CONNECTION WITH THE OFFERING. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION".
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AVAILABLE INFORMATION
This Prospectus constitutes a part of a Registration Statement on Form S-3
(herein together with all amendments thereto referred to as the "Registration
Statement") filed by the Company with the Commission under the Securities Act of
1933, as amended. This Prospectus does not contain all the information set forth
in the Registration Statement and exhibits thereto, and statements included in
this Prospectus as to the content of any contract or other document referred to
are not necessarily complete. For further information, reference is made to the
Registration Statement and to the exhibits and schedules filed therewith. All
these documents may be inspected at the Commission's principal office in
Washington, D.C. without charge, and copies of them may be obtained from the
Commission upon payment of prescribed fees. Statements contained in this
Prospectus as to the contents of any contract or other document filed as an
exhibit to the Registration Statement are not necessarily complete, and in each
instance reference is hereby made to the copy of such contract or other document
filed as an exhibit to the Registration Statement, each such statement being
qualified in all respects by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and, in accordance therewith
files reports, proxy statements and other information with the Commission. Such
reports, proxy statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, Room 1024 and at the following Regional
Offices of the Commission: 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511, and 7 World Trade Center, 13th Floor, New York, New York
10048. The Commission maintains a Web site that contains reports, proxy and
information statements and other information regarding registrants that file
electronically with the Commission. The address of the Commission's Web site is
http://www.sec.gov. Copies of such material also can be obtained at prescribed
rates by writing to the Commission, Public Reference Section, 450 Fifth Street,
N.W., Washington, D.C. 20549. In addition, such material may be inspected and
copied at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New
York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents that previously were, or are required in the future
to be, filed with the
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Commission (File No. 1-13446) pursuant to the 1934 Act are incorporated herein
by reference:
(i) the Company's Annual Report on Form 10-K for the year ended December
31, 1997;
(ii) the description of the Company's Common Stock contained in the
Company's registration statement on Form 8-A as filed with the
Commission on October 27, 1994;
(iii) the description of the Company's Preferred Stock Purchase Rights (the
"Rights") contained in the Company's Registration Statement on Form 8-A
as filed with the Commission on August 12, 1997;
(iv) the Company's Proxy Statement dated April 3, 1998 concerning the
Company's Annual Meeting of Stockholders held April 30, 1998; and
(v) all documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the 1934 Act subsequent to the date of this Prospectus
and prior to the termination of the offering of the Securities.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that such statement is modified or replaced by a statement contained
in this Prospectus or in any other subsequently filed document that also is or
is deemed to be incorporated by reference into this Prospectus. Any such
statement so modified or superseded shall not be deemed, except as so modified
or replaced, to constitute a part of this Prospectus. The Company will provide
without charge to each person to whom a copy of this Prospectus has been
delivered, upon the written or oral request of any such person, a copy of any or
all of the documents referred to above that have been or may be incorporated in
this Prospectus by reference, other than exhibits to such documents. Written or
oral requests for such copies should be directed to Secretary, Barrett Resources
Corporation, 1515 Arapahoe Street, Tower 3, Suite 1000, Denver, Colorado 80202,
(303) 572-3900.
Quantities of natural gas are expressed in this Prospectus in terms of
thousand cubic feet ("Mcf"), million cubic feet ("MMcf") or billion cubic feet
("Bcf"). Oil is quantified in terms of barrels ("Bbls"). Gas is converted into a
barrel of oil equivalent ("Boe"), and oil is converted into gas equivalent
("Mcfe", "MMcfe" or "Bcfe"), based on 6.0 Mcf of gas to one barrel of oil.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus includes "forward-looking statements" within the meaning
of Section 27A of the Securities Act and Section 21E of the Exchange Act. All
statements other than statements of historical facts included or incorporated in
this Prospectus, including without limitation statements regarding the Company's
financial position, reserve quantities and net present values, business
strategy, plans and objectives of management of the Company for future
operations, capital expenditures, and covenant compliance, are forward-looking
statements. Although the Company believes that the expectations reflected in the
forward-looking statements and the assumptions upon which such forward-looking
statements are based are reasonable, it can give no assurance that such
expectations and assumptions will prove to have been correct. Reserve estimates
are generally different from the quantities of oil and natural gas that are
ultimately recovered. Additional important factors that could cause actual
results to differ materially from the Company's expectations ("Cautionary
Statements") are disclosed in this Prospectus and the documents incorporated in
this Prospectus. All written and oral forward-looking statements attributable to
the Company or persons acting on its behalf subsequent to the date of this
Prospectus are expressly qualified in their entirety by the Cautionary
Statements.
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THE COMPANY
The Company is an independent natural gas and crude oil exploration and
production company with core areas of activity in the Rocky Mountain Region of
Colorado, Wyoming and Utah; the Mid-Continent Region of Kansas, Oklahoma, New
Mexico and Texas; and the Gulf of Mexico Region of offshore Texas and Louisiana.
The Company also owns interests in and operates a natural gas gathering system,
a 27-mile pipeline and a natural gas processing plant in the Piceance Basin in
northwestern Colorado. The Company currently is pursuing development projects
in the Wind River Basin in Wyoming, the Piceance Basin, the Anadarko and Arkoma
Basins in Oklahoma and the Uinta Basin of Utah, and exploration projects in the
Wind River and Anadarko Basins, the Gulf of Mexico and the Republic of Peru. At
December 31, 1997, the Company's estimated proved reserves were 963.2 Bcfe (88%
natural gas and 12% crude oil) with an implied reserve life of 10.7 years based
on 1997 total production of 89.9 Bcfe.
The Company's executive offices are located at 1515 Arapahoe Street, Tower
3, Suite 1000, Denver, Colorado 80202, and its telephone number is (303) 572-
3900. The Company maintains additional exploration offices in Tulsa, Oklahoma
and Houston, Texas.
USE OF PROCEEDS
Except as otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, which may include the repayment of outstanding
indebtedness, working capital increases, capital expenditures and acquisitions.
Pending application, such proceeds may be invested in short-term obligations or
qualified government or marketable securities. Any specific allocations of the
proceeds to a particular purpose that have been made at the date of any
Prospectus Supplement will be described therein.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges was as follows for the
years and periods indicated:
YEARS ENDED DECEMBER 31,
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1993 1994 1995 1996 1997
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20.3 12.2 .9 11.7 4.4
For purposes of computing the ratio of earnings to fixed charges, earnings
are computed as net income (loss) before income taxes, plus fixed charges. Fixed
charges consist of interest expense, whether expensed or capitalized, on all
indebtedness plus amortization of debt issuance costs. For the year ended
December 31, 1995, there was a $406,000 deficiency in earnings necessary to
cover historical fixed charges due to the Company's incurring $14.2 million of
nonrecurring merger costs.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which the
general provisions may apply to the Debt Securities so offered will be described
in the Prospectus Supplement
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relating to the Debt Securities. Accordingly, for a description of the terms of
a particular issue of Debt Securities, reference must be made to both the
Prospectus Supplement relating thereto and to the following description.
The Debt Securities will be general obligations of the Company and may be
subordinated to Senior Indebtedness (as defined below) of the Company to the
extent set forth in the Prospectus Supplement relating thereto. See
"Description of Debt Securities -- Subordination." Debt Securities will be
issued under an indenture (the "Indenture") between the Company and one or more
commercial banks to be selected as trustees (the trustee or trustees selected
are referred to collectively as the "Trustee"). The Indenture is subject to and
governed by the Trust Indenture Act of 1939 (the "TIA"), and the terms of the
Debt Securities will include those made part of the Indenture by reference to
the TIA as in effect on the date of the Indenture. A copy of the Indenture is
filed as an exhibit to the Registration Statement of which this Prospectus is a
part. The Indenture also will be available for inspection at the corporate
trust office of the Trustee. The following discussion of certain provisions of
the Indenture is a summary only and does not purport to be a complete
description of the terms and provisions of the Indenture. Accordingly, the
following discussion is qualified in its entirety by reference to the provisions
of the Indenture and the TIA, including the definition in the Indenture of terms
used below with their initial letters capitalized. The italicized references
below apply to the article or section numbers in the Indenture.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities that can be issued thereunder. The Debt Securities may be issued in
one or more series as may be authorized from time to time by the Company.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Debt Securities of the series with respect to which the Prospectus
Supplement is being delivered:
(a) the title of the Debt Securities of the series;
(b) any limit on the aggregate principal amount of the Debt Securities
of the series that may be authenticated and delivered under the Indenture;
(c) the date or dates on which the principal and premium with respect
to the Debt Securities of the series are payable;
(d) the rate or rates (which may be fixed or variable) at which the Debt
Securities of the series shall bear interest (if any) or the method of
determining the rate or rates, the date or dates from which the interest shall
accrue, the interest payment dates on which the interest shall be payable or the
method by which the dates will be determined, the record dates for the
determination of holders thereof to whom the interest is payable (in the case of
Registered Securities), and the basis upon which interest will be calculated if
other than that of a 360-day year of twelve 30-day months;
(e) the place or places, if any, in addition to or instead of the
corporate trust office of the Trustee (in the case of Registered
Securities) or the principal London office of the Trustee (in the case of
Bearer Securities), where the principal, premium, and interest with respect
to Debt Securities of the series shall be payable;
(f) the price or prices at which, the period or periods within which,
and the terms
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and conditions upon which, Debt Securities of the series may be redeemed, in
whole or in part, at the option of the Company or otherwise;
(g) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both and, if Bearer Securities are
to be issued, whether coupons will be attached thereto, whether Bearer
Securities of the series may be exchanged for Registered Securities of the
series, and the circumstances under which and the places at which any such
exchanges, if permitted, may be made;
(h) if any Debt Securities of the series are to be issued as Bearer
Securities or as one or more Global Securities (as defined below) representing
individual Bearer Securities of the series, whether certain provisions for the
payment of additional interest or tax redemptions shall apply; whether interest
with respect to any portion of a temporary Bearer Security of the series payable
with respect to any interest payment date prior to the exchange of the temporary
Bearer Security for definitive Bearer Securities of the series shall be paid to
any clearing organization with respect to the portion of the temporary Bearer
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the persons entitled to
interest payable on the interest payment date; and the terms upon which a
temporary Bearer Security may be exchanged for one or more definitive Bearer
Securities of the series;
(i) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which, the period or periods within which, and the terms and conditions upon
which, Debt Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligations;
(j) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for Common Stock, Preferred Stock (which
may be represented by Depositary Shares), other Debt Securities, or warrants for
Common Stock, Preferred Stock, or indebtedness or other securities of any kind
of the Company or any other issuer or obligor and the terms and conditions upon
which the conversion or exchange shall be effected, including the initial
conversion or exchange price or rate, the conversion or exchange period, and any
other additional provisions;
(k) if other than denominations of $1,000 or any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
(l) if the amount of principal, premium or interest with respect to
the Debt Securities of the series may be determined with reference to an index
or pursuant to a formula, the manner in which the amounts will be determined;
(m) if the principal amount payable at the stated maturity of Debt
Securities of the series will not be determinable as of any one or more dates
prior to the stated maturity, the amount that will be deemed to be the principal
amount as of any date for any purpose, including the principal amount thereof
which will be due and payable upon any maturity other than the stated maturity
or which will be deemed to be outstanding as of any date (or, in any such case,
the manner in which the deemed principal amount is to be determined), and if
necessary, the manner of determining the equivalent thereof in United States
currency;
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(n) any changes or additions to the provisions of the Indenture
dealing with defeasance, including the addition of additional covenants
that may be subject to the Company's covenant defeasance option;
(o) if other than the coin or currency of the United States as at the
time of payment is legal tender for payment of public and private debts,
the coin or currency or currencies or units of two or more currencies in
which payment of the principal, premium, and interest with respect to Debt
Securities of the series shall be payable;
(p) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series that shall be payable
upon declaration of acceleration of the maturity thereof or provable in
bankruptcy;
(q) the terms, if any, of the transfer, mortgage, pledge or assignment
as security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities, or other collateral, including
whether certain provisions of the TIA are applicable and any corresponding
changes to provisions of the Indenture as then in effect;
(r) any addition to or change in the Events of Default with respect to
the Debt Securities of the series and any change in the right of the
Trustee or the holders to declare the principal, premium and interest with
respect to the Debt Securities due and payable;
(s) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security, the terms and conditions, if any,
upon which the Global Security may be exchanged in whole or in part for
other individual Debt Securities in definitive registered form, the
Depositary for the Global Security, and the form of any legend or legends
to be borne by the Global Security in addition to or in lieu of the legend
referred to in the Indenture;
(t) any Trustee, authenticating or paying agents, transfer agents or
registrars;
(u) the applicability of, and any addition to or change in, the
covenants and definitions then set forth in the Indenture or in the terms
then set forth in the Indenture relating to permitted consolidations,
mergers or sales of assets, including conditioning any merger, conveyance,
transfer or lease permitted by the Indenture upon the satisfaction of an
indebtedness coverage standard by the Company and any successor to the
Company;
(v) the terms, if any, of any guarantee of the payment of principal,
premium and interest with respect to Debt Securities of the series and any
corresponding changes to the provisions of the Indenture as then in effect;
(w) the subordination, if any, of the Debt Securities of the series
pursuant to the Indenture and any changes or additions to the provisions of
the Indenture relating to subordination;
(x) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(y) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of the Indenture). (Section 2.03)
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The Prospectus Supplement will also describe any material United States
federal income tax consequences or other special considerations applicable to
the series of Debt Securities to which the Prospectus Supplement relates,
including those applicable to (a) Bearer Securities, (b) Debt Securities with
respect to which payments of principal, premium or interest are determined with
reference to an index or formula (including changes in prices of particular
securities, currencies or commodities), (c) Debt Securities with respect to
which principal, premium or interest is payable in a foreign or composite
currency, (d) Debt Securities that are issued at a discount below their stated
principal amount, bearing no interest or interest at a rate that at the time of
issuance is below market rates ("Original Issue Discount Debt Securities"), and
(e) variable rate Debt Securities that are exchangeable for fixed rate Debt
Securities.
Payments of interest on Registered Securities may be made at the option of
the Company by check mailed to the registered holders thereof or, if so provided
in the applicable Prospectus Supplement, at the option of a holder by wire
transfer to an account designated by the holder. Except as otherwise provided in
the applicable Prospectus Supplement, no payment on a Bearer Security will be
made by mail to an address in the United States or by wire transfer to an
account in the United States. (Section 2.12)
Unless otherwise provided in the applicable Prospectus Supplement,
Registered Securities may be transferred or exchanged at the office of the
Trustee at which its corporate trust business is principally administered in the
United States or at the office of the Trustee or the Trustee's agent in the
Borough of Manhattan, the City and State of New York, at which its corporate
agency business is conducted, subject to the limitations provided in the
Indenture, without the payment of any service charge, other than any tax or
governmental charge payable in connection therewith. Bearer Securities will be
transferable only by delivery. Provisions with respect to the exchange of Bearer
Securities will be described in the Prospectus Supplement relating to the Bearer
Securities. (Section 2.07)
All funds paid by the Company to a paying agent for the payment of
principal, premium, or interest with respect to any Debt Securities that remain
unclaimed at the end of two years after the principal, premium, or interest
shall have become due and payable will be repaid to the Company, and the holders
of the Debt Securities or any coupons appertaining thereto will thereafter look
only to the Company for payment thereof. (Section 11.05)
Global Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities. A Global Security is a Debt Security that
represents, and is denominated in an amount equal to, the aggregate principal
amount of all outstanding Debt Securities of a series, or any portion thereof,
in either case having the same terms, including the same original issue date,
date or dates on which principal and interest are due, and interest rate or
method of determining interest. A Global Security will be deposited with, or on
behalf of, a Depositary, which will be identified in the Prospectus Supplement
relating to the Debt Securities. Global Securities may be issued in either
registered or bearer form and in either temporary or definitive form. Unless and
until it is exchanged in whole or in part for the individual Debt Securities
represented thereby, a Global Security may not be transferred except as a whole
by the Depositary to a nominee of the Depositary, by a nominee of the Depositary
to the Depositary or another nominee of the Depositary, or by the Depositary or
any nominee of the Depositary to a successor Depositary or any nominee of the
successor.
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will
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be described in the Prospectus Supplement relating to the Debt Securities. The
Company anticipates that the following provisions will generally apply to
depositary arrangements.
Upon the issuance of a Global Security, the Depositary for the Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the individual Debt Securities represented by
the Global Security to the accounts of persons that have accounts with the
Depositary ("participants"). The accounts shall be designated by the dealers or
underwriters with respect to the Debt Securities or, if the Debt Securities are
offered and sold directly by the Company or through one or more agents, by the
Company or the agents. Ownership of beneficial interests in a Global Security
will be limited to participants or persons that hold beneficial interests
through participants. Ownership of beneficial interests in the Global Security
will be shown on, and the transfer of that ownership will be effected only
through, records maintained by the Depositary (with respect to interests of
participants) or records maintained by participants (with respect to interests
of persons other than participants). The laws of some states require that
certain purchasers of securities take physical delivery of the securities in
definitive form. Such limitations and laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner or holder of the Global Security, the Depositary or nominee, as
the case may be, will be considered the sole owner or holder of the individual
Debt Securities represented by the Global Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have any of the individual Debt Securities
represented by the Global Security registered in their names, will not receive
or be entitled to receive physical delivery of any of the Debt Securities in
definitive form, and will not be considered the owners or holders thereof under
the Indenture.
Subject to the restrictions described under "Description of Debt
Securities--Limitations on Issuance of Bearer Securities," payments of
principal, premium and interest with respect to individual Debt Securities
represented by a Global Security will be made to the Depositary or its nominee,
as the case may be, as the registered owner or holder of the Global Security.
Neither the Company, the Trustee, any paying agent or registrar for the Debt
Securities, or any agent of the Company or the Trustee will have any
responsibility or liability for (a) any aspect of the records relating to or
payments made by the Depositary, its nominee, or any participants on account of
beneficial interests in the Global Security or for maintaining, supervising or
reviewing any records relating to the beneficial interests, (b) the payment to
the owners of beneficial interests in the Global Security of amounts paid to the
Depositary or its nominee, or (c) any other matter relating to the actions and
practices of the Depositary, its nominee or its participants. Neither the
Company, the Trustee, any paying agent or registrar for the Debt Securities, nor
any agent of the Company or the Trustee will be liable for any delay by the
Depositary, its nominee or any of its participants in identifying the owners of
beneficial interests in the Global Security, and the Company and the Trustee may
conclusively rely on, and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes.
The Company expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal, premium or interest with
respect to a definitive Global Security representing any of the Debt Securities
immediately will credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of the Global Security, as shown on the records of the Depositary or its
nominee. The Company also expects that payments by participants to owners of
beneficial interests in the Global Security held through the participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers and registered in street
name. The payments will be the responsibility of the participants. Receipt by
owners of beneficial interests in a temporary Global
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Security of payments of principal, premium or interest with respect thereto will
be subject to the restrictions described under "Description of Debt Securities
- --Limitations on Issuance of Bearer Securities."
If the Depositary for a series of Debt Securities is at any time unwilling,
unable or ineligible to continue as depositary, the Company shall appoint a
successor depositary. If a successor depositary is not appointed by the Company
within 90 days, the Company will issue individual Debt Securities of the series
in exchange for the Global Security representing the series of Debt Securities.
In addition, the Company may at any time and in its sole discretion, subject to
any limitations described in the Prospectus Supplement relating to the Debt
Securities, determine no longer to have Debt Securities of a series represented
by a Global Security and, in that event, will issue individual Debt Securities
of the series in exchange for the Global Security representing the series of
Debt Securities. Furthermore, if the Company so specifies with respect to the
Debt Securities of a series, an owner of a beneficial interest in a Global
Security representing Debt Securities of the series may, on terms acceptable to
the Company, the Trustee, and the Depositary for the Global Security, receive
individual Debt Securities of the series in exchange for the beneficial
interests, subject to any limitations described in the Prospectus Supplement
relating to the Debt Securities. In any such instance, an owner of a beneficial
interest in a Global Security will be entitled to physical delivery of
individual Debt Securities of the series represented by the Global Security
equal in principal amount to the beneficial interest and to have the Debt
Securities registered in its name (if the Debt Securities are issuable as
Registered Securities). Individual Debt Securities of the series so issued will
be issued (a) as Registered Securities in denominations, unless otherwise
specified by the Company, of $1,000 and integral multiples thereof if the Debt
Securities are issuable as Registered Securities, (b) as Bearer Securities in
the denomination or denominations specified by the Company if the Debt
Securities are issuable as Bearer Securities, or (c) as either Registered
Securities or Bearer Securities as described above if the Debt Securities are
issuable in either form. See, however, "Description of Debt Securities --
Limitations on Issuance of Bearer Securities" for a description of certain
restrictions on the issuance of individual Bearer Securities in exchange for
beneficial interests in a bearer Global Security. (Section 2.15)
Limitations on Issuance of Bearer Securities
The Debt Securities of a series may be issued as Registered Securities
(which will be registered as to principal and interest in the register
maintained by the registrar for the Debt Securities) or Bearer Securities (which
will be transferable only by delivery). If the Debt Securities are issuable as
Bearer Securities, certain special limitations and considerations will apply.
In compliance with United States federal income tax laws and regulations,
the Company and any underwriter, agent or dealer participating in an offering of
Bearer Securities will agree that, in connection with the original issuance of
the Bearer Securities and during the period ending 40 days after the issue date,
they will not offer, sell or deliver any such Bearer Security, directly or
indirectly, to a United States Person (as defined below) or to any person within
the United States, except to the extent permitted under United States Treasury
regulations.
Bearer Securities will bear a legend to the following effect: "Any United
States person who holds this obligation will be subject to limitations under the
United States federal income tax laws, including the limitations provided in
Sections 165(j) and 1287(a) of the Internal Revenue Code." The sections referred
to in the legend provide that, with certain exceptions, a United States taxpayer
who holds Bearer Securities will not be allowed to deduct any loss with respect
to, and will not be eligible for capital gain treatment with respect to any gain
realized on the sale, exchange, redemption or other disposition of, the Bearer
Securities.
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For this purpose, "United States" includes the United States of America and
its possessions, and "United States person" means a citizen or resident of the
United States, a corporation, partnership or other entity created or organized
in or under the laws of the United States, or an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source.
Pending the availability of a definitive Global Security or individual
Bearer Securities, as the case may be, Debt Securities that are issuable as
Bearer Securities may initially be represented by a single temporary Global
Security, without interest coupons, to be deposited with a common depositary in
London for Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System ("Euroclear"), or Centrale de Livraison de
Valeurs Mobilieres S.A. ("CEDEL") for credit to the accounts designated by or on
behalf of the purchasers thereof. Following the availability of a definitive
Global Security in bearer form, without coupons attached, or individual Bearer
Securities and subject to any further limitations described in the applicable
Prospectus Supplement, the temporary Global Security will be exchangeable for
interests in the definitive Global Security or for the individual Bearer
Securities, respectively, only upon receipt of a "Certificate of Non-U.S.
Beneficial Ownership," which is a certificate to the effect that a beneficial
interest in a temporary Global Security is owned by a person that is not a
United States Person or is owned by or through a financial institution in
compliance with applicable United States Treasury regulations. No Bearer
Security will be delivered in or to the United States. If so specified in the
applicable Prospectus Supplement, interest on a temporary Global Security will
be paid to each of Euroclear and CEDEL with respect to that portion of the
temporary Global Security held for its account, but only upon receipt as of the
relevant interest payment date of a Certificate of Non-U.S. Beneficial
Ownership.
Subordination
Debt Securities of a series may be subordinated ("Subordinated Debt
Securities") to Senior Indebtedness (as defined below) to the extent set forth
in the Prospectus Supplement relating thereto. Subordinated Debt Securities of a
series and any coupons appertaining thereto will be subordinate in right of
payment, to the extent and in the manner set forth in the Indenture and the
Prospectus Supplement relating to the Subordinated Debt Securities, to the prior
payment of all indebtedness of the Company that is designated as "Senior
Indebtedness" with respect to the series. "Senior Indebtedness," with respect to
any series of Subordinated Debt Securities, will consist of (a) any and all
amounts payable under or with respect to the Company's "Bank Indebtedness", (b)
any and all amounts payable under the Company's outstanding 7.55% Senior Notes
due 2007 and (c) any other indebtedness of the Company that is designated in a
resolution of the Company's Board of Directors or in any supplemental indenture
establishing any other series as Senior Indebtedness with respect to the series
of Subordinated Debt Securities. "Bank Indebtedness" is defined as all amounts
payable under the Amended and Restated Credit Agreement, dated as of November
12, 1997, among the Company, the Banks named therein, Texas Commerce Bank
National Association, as Agent, and The Chase Manhattan Bank, as Competitive Bid
Auction Agent, as amended or modified from time to time.
Upon any payment or distribution of assets of the Company to creditors or
upon a total or partial liquidation or dissolution of the Company or in a
bankruptcy, receivership or similar proceeding relating to the Company or its
property, holders of Senior Indebtedness shall be entitled to receive payment in
full in cash of the Senior Indebtedness before holders of Subordinated Debt
Securities shall be entitled to receive any payment of principal, premium or
interest with respect to the Subordinated Debt Securities, and until the Senior
Indebtedness is paid in full, any distribution to which holders of Subordinated
Debt Securities would otherwise be entitled shall be made to the holders of
Senior Indebtedness (except that the holders may receive shares of stock and any
debt securities that are subordinated to Senior Indebtedness to at least the
same extent as the Subordinated Debt Securities). (Section 12.02)
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The Company may not make any payments of principal, premium or interest
with respect to Subordinated Debt Securities, make any deposit for the purpose
of defeasance of the Subordinated Debt Securities, or repurchase, redeem or
otherwise retire (except, in the case of Subordinated Debt Securities that
provide for a mandatory sinking fund, by the delivery of Subordinated Debt
Securities by the Company to the Trustee in satisfaction of the Company's
sinking fund obligation) any Subordinated Debt Securities if (a) any principal,
premium or interest with respect to Senior Indebtedness is not paid within any
applicable grace period (including at maturity), or (b) any other default on
Senior Indebtedness occurs and the maturity of the Senior Indebtedness is
accelerated in accordance with its terms, unless, in either case, the default
has been cured or waived and the acceleration has been rescinded, the Senior
Indebtedness has been paid in full in cash, or the Company and the Trustee
receive written notice approving the payment from the representatives of each
issue of "Designated Senior Indebtedness" (which will include the Bank
Indebtedness, the Company's outstanding 7.55% Senior Notes due 2007, and any
other specified issue of Senior Indebtedness of at least $100 million). During
the continuance of any default (other than a default described in clause (a) or
(b) above) with respect to any Senior Indebtedness pursuant to which the
maturity thereof may be accelerated immediately without further notice (except
such notice as may be required to effect the acceleration) or the expiration of
any applicable grace periods, the Company may not pay the Subordinated Debt
Securities for a period (the "Payment Blockage Period") commencing on the
receipt by the Company and the Trustee of written notice of the default from the
representative of any Designated Senior Indebtedness specifying an election to
effect a Payment Blockage Period (a "Blockage Notice"). The Payment Blockage
Period may be terminated before its expiration by written notice to the Trustee
and the Company from the person who gave the Blockage Notice, by repayment in
full in cash of the Senior Indebtedness with respect to which the Blockage
Notice was given, or because the default giving rise to the Payment Blockage
Period is no longer continuing. Unless the holders of the Senior Indebtedness
shall have accelerated the maturity thereof, the Company may resume payments on
the Subordinated Debt Securities after the expiration of the Payment Blockage
Period. Not more than one Blockage Notice may be given in any period of 360
consecutive days unless the first Blockage Notice within the 360-day period is
given by or on behalf of holders of Designated Senior Indebtedness other than
the Bank Indebtedness, in which case, the representative of the Bank
Indebtedness may give another Blockage Notice within the period. In no event,
however, may the total number of days during which any Payment Blockage Period
or Periods is in effect exceed 179 days in the aggregate during any period of
360 consecutive days. After all Senior Indebtedness is paid in full and until
the Subordinated Debt Securities are paid in full, holders of the Subordinated
Debt Securities shall be subrogated to the rights of holders of Senior
Indebtedness to receive distributions applicable to Senior Indebtedness.
(Section 12.03)
By reason of the subordination, in the event of insolvency, creditors of
the Company who are holders of Senior Indebtedness, as well as certain general
creditors of the Company, may recover more, ratably, than the holders of the
Subordinated Debt Securities.
Events of Default and Remedies
The following events are defined in the Indenture as "Events of Default"
with respect to a series of Debt Securities:
(a) default in the payment of any installment of interest on any Debt
Securities of that series or any payment with respect to the related
coupons, if any, as and when the same shall become due and payable (whether
or not, in the case of Subordinated Debt Securities, the payment shall be
prohibited by reason of the subordination provisions described above) and
continuance of the default for a period of 30 days;
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(b) default in the payment of principal or premium with respect to any
Debt Securities of that series as and when the same shall become due and
payable, whether at maturity, upon redemption, by declaration, upon
required repurchase or otherwise (whether or not, in the case of
Subordinated Debt Securities, the payment shall be prohibited by reason of
the subordination provisions described above);
(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series as and when the same shall become due
and payable;
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the Debt
Securities of that series, in any resolution of the Board of Directors of
the Company authorizing the issuance of that series of Debt Securities, in
the Indenture with respect to the series, or in any supplemental indenture
with respect to the series (other than a covenant a default in the
performance of which is otherwise specifically dealt with) continuing for a
period of 60 days after the date on which written notice specifying the
failure and requiring the Company to remedy the same shall have been given
to the Company by the Trustee or to the Company and the Trustee by the
holders of at least 25% in aggregate principal amount of the Debt
Securities of that series at the time outstanding;
(e) any default shall occur which results in the acceleration of the
maturity of any Indebtedness of the Company or any Restricted Subsidiary
(other than the series of Debt Securities) having an outstanding principal
amount of $5 million or more individually or, taken together with all other
such Indebtedness that has been so accelerated, in the aggregate; or any
default shall occur in the payment of any principal or interest in respect
of any Indebtedness of the Company or any Restricted Subsidiary (other than
the series of Debt Securities) having an outstanding principal amount of $5
million or more individually or, taken together with all other such
Indebtedness with respect to which any such payment has not been made in
the aggregate and such default shall be continuing for a period of 30 days
without the Company or such Restricted Subsidiary, as the case may be,
effecting a cure of such default;
(f) failure by the Company or any Restricted Subsidiary to pay final,
non-appealable judgments aggregating in excess of $10 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
(g) the Company or any Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an involuntary
case, (iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (iv) makes a general assignment for
the benefit of its creditors;
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (i) is for relief against the Company or any
Restricted Subsidiary as debtor in an involuntary case, (ii) appoints a
Custodian of the Company or any Restricted Subsidiary or a Custodian for
all or substantially all of the property of the Company or any Restricted
Subsidiary), or (iii) orders the liquidation of the Company or any
Restricted Subsidiary, and the order or decree remains unstayed and in
effect for 60 days; or
(i) any other Event of Default provided with respect to Debt
Securities of that series.
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An Event of Default with respect to one series of Debt Securities is not
necessarily an Event of Default for another series.
If an Event of Default described in clause (a), (b), (c), (d), (e), (f) or
(i) above occurs and is continuing with respect to any series of Debt
Securities, unless the principal and interest with respect to all the Debt
Securities of the series shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Debt Securities of that series then outstanding may declare the principal amount
(or, if Original Issue Discount Debt Securities, the portion of the principal
amount as may be specified in the series) of and interest on all the Debt
Securities of that series due and payable immediately. If an Event of Default
described in clause (g) or (h) above occurs, unless the principal and interest
with respect to all the Debt Securities of all series shall have become due and
payable, the principal amount (or, if Original Issue Discount Debt Securities,
the portion of the principal amount as may be specified in the series) of and
interest on all Debt Securities of all series then outstanding shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any holder of Debt Securities. (Section 6.01)
If an Event of Default occurs and is continuing, the Trustee shall be
entitled and empowered to institute any action or proceeding for the collection
of the sums so due and unpaid or to enforce the performance of any provision of
the Debt Securities of the affected series or the Indenture, to prosecute any
such action or proceeding to judgment or final decree, and to enforce any
judgment or final decree against the Company or any other obligor on the Debt
Securities of the series. In addition, if there shall be pending proceedings for
the bankruptcy or reorganization of the Company or any other obligor on the Debt
Securities, or if a receiver, trustee, or similar official shall have been
appointed for its property, the Trustee shall be entitled and empowered to file
and prove a claim for the whole amount of principal, premium and interest (or,
in the case of Original Issue Discount Debt Securities, the portion of the
principal amount as may be specified in the terms of the series) owing and
unpaid with respect to the Debt Securities. (Section 6.02)
The holders of not less than a majority in aggregate principal amount of a
series of Debt Securities may direct the time, method and place of conducting
any proceedings for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee; provided that such direction is not in
conflict with any rule of law or with the Indenture. The Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction. (Section 6.06)
The Trustee will be entitled, subject to the duty of the Trustee during the
continuance of an Event of Default to act with the required standard of care, to
be indemnified by the holders of a series of Debt Securities before proceeding
to exercise any right or power under the Indenture at the request of the holders
of that series of Debt Securities.
No holder of any Debt Security or coupon of any series shall have any right
to institute any action or proceeding upon or under or with respect to the
Indenture, for the appointment of a receiver or trustee, or for any other
remedy, unless (a) the holder previously shall have given to the Trustee written
notice of an Event of Default with respect to Debt Securities of that series and
of the continuance thereof, (b) the holders of not less than 25% in aggregate
principal amount of the outstanding Debt Securities of that series shall have
made written request to the Trustee to institute the action or proceeding with
respect to the Event of Default and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred therein or thereby, and (c) the Trustee, for 60 days
after its receipt of such notice, request, and offer of indemnity shall have
failed to institute
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the action or proceeding and no direction inconsistent with the written request
shall have been given to the Trustee pursuant to the provisions of the
Indenture. However, such limitations do not apply to a suit instituted by a
holder of Debt Securities for enforcement of payment of the principal of,
premium, if any, or interest on such Debt Securities on or after the respective
due dates expressed in such Debt Securities. (Section 6.04)
Prior to the acceleration of the maturity of the Debt Securities of any
series, the holders of a majority in aggregate principal amount of the Debt
Securities of that series at the time outstanding may, on behalf of the holders
of all Debt Securities and any related coupons of that series, waive any past
default or Event of Default and its consequences for that series, except (a) a
default in the payment of the principal, premium or interest with respect to the
Debt Securities, or (b) a default with respect to a provision of the Indenture
that cannot be amended without the consent of each holder affected thereby. In
case of any waiver, the default shall cease to exist, any Event of Default
arising therefrom shall be deemed to have been cured for all purposes, and the
Company, the Trustee and the holders of the Debt Securities of that series shall
be restored to their former positions and rights under the Indenture. (Section
6.06)
The Trustee shall, within 90 days after the occurrence of a default known
to it with respect to a series of Debt Securities, give to the holders of that
series of Debt Securities notice of all uncured defaults with respect to the
series known to it, unless the defaults shall have been cured or waived before
the giving of the notice; provided, however, that except in the case of default
in the payment of principal, premium, or interest with respect to the Debt
Securities of that series or in the making of any sinking fund payment with
respect to the Debt Securities of that series, the Trustee shall be protected in
withholding notice if it in good faith determines that the withholding of such
notice is in the interest of the holders of the Debt Securities of that series.
(Section 6.07)
The Indenture will require the Company to file annually with the Trustee a
certificate, executed by a designated officer of the Company, stating to the
best of his knowledge that the Company is not in default under certain covenants
under the Indenture or if he has knowledge that the Company is in such default,
specifying such default. (Section 4.06)
Modification of the Indenture
The Company and the Trustee may enter into supplemental indentures without
the consent of the holders of Debt Securities for one or more of the following
purposes:
(a) to evidence the succession of another person to the Company
pursuant to the provisions of the Indenture pursuant to consolidations,
mergers and sales of assets and the assumption by the successor of the
covenants, agreements, and obligations of the Company in the Indenture and
in the Debt Securities;
(b) to surrender any right or power conferred upon the Company by the
Indenture, to add to the covenants of the Company such further covenants,
restrictions, conditions, or provisions for the protection of the holders
of all or any series of Debt Securities as the Board of Directors of the
Company shall consider to be for the protection of the holders of the Debt
Securities, and to make the occurrence, or the occurrence and continuance,
of a default in any of the additional covenants, restrictions, conditions
or provisions a default or an Event of Default under the Indenture
(provided, however, that with respect to any such additional covenant,
restriction, condition or provision, the supplemental indenture may provide
for a period of grace after default, which may be shorter or longer than
that allowed in the case of other defaults, may
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provide for an immediate enforcement upon the default, may limit the remedies
available to the Trustee upon the default, or may limit the right of holders of
a majority in aggregate principal amount of any or all series of Debt Securities
to waive the default);
(c) to cure any ambiguity or omission or to correct or supplement any
provision contained in the Indenture, in any supplemental indenture, or in
any Debt Securities that may be defective or inconsistent with any other
provision contained therein, to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee, or to make such other
provisions in regard to matters or questions arising under the Indenture as
shall not adversely affect the interests of any holders of Debt Securities
of any series;
(d) to modify or amend the Indenture in such a manner as to permit the
qualification of the Indenture or any supplemental indenture under the TIA
as then in effect;
(e) to add to or change any of the provisions of the Indenture to
provide that Bearer Securities may be registerable as to principal, to
change or eliminate any restrictions on the payment of principal or premium
with respect to Registered Securities or of principal, premium or interest
with respect to Bearer Securities, or to permit Registered Securities to be
exchanged for Bearer Securities, so long as any such action does not
adversely affect the interests of the holders of Debt Securities or any
coupons of any series in any material respect or permit or facilitate the
issuance of Debt Securities of any series in uncertificated form;
(f) to comply with the provisions of the Indenture relating to
consolidations, mergers, and sales of assets;
(g) in the case of Subordinated Debt Securties, to make any change in
the provisions of the Indenture to subordination that would limit or
terminate the benefits available to any holder of Senior Indebtedness under
such provisions (but only if the holder of Senior Indebtedness consents to
the change);
(h) to add guarantees with respect to any or all of the Debt
Securities or to secure any or all of the Debt Securities;
(i) to make any change that does not adversely affect the rights of
any holder;
(j) to add to, change or eliminate any of the provisions of the
Indenture with respect to one or more series of Debt Securities, so long as
any such addition, change or elimination not otherwise permitted under the
Indenture shall (1) neither apply to any Debt Security of any series
created prior to the execution of the supplemental indenture and entitled
to the benefit of the provision nor modify the rights of the holders of any
Debt Security with respect to the provision, or (2) become effective only
when there is no Debt Security outstanding;
(k) to evidence and provide for the acceptance of appointment by a
successor or separate Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of the Indenture
as shall be necessary to provide for or facilitate the administration of
the Indenture by more than one Trustee;
(l) to establish the form of terms of Debt Securities and coupons of
any series, as described under "Description of Debt Securities -- General";
and
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(m) to provide for uncertificated Debt Securities in addition to or
in place of certificated Debt Securities (provided that the uncertificated
Debt Securities are issued in registered form for purposes of Section
163(f) of the Internal Revenue Code of 1986, as amended or in a manner such
that the uncertificated Debt Securities are described in Section 163 (f)
(2) (B) of the Internal Revenue Code of 1986, as amended). (Section 9.01)
With the consent of the holders of a majority in aggregate principal amount
of the outstanding Debt Securities of each series affected thereby, the Company
and the Trustee may from time to time and at any time enter into a supplemental
indenture for the purpose of adding any provisions to, changing in any manner,
or eliminating any of the provisions of the Indenture or of any supplemental
indenture or modifying in any manner the rights of the holders of the Debt
Securities of that series; provided, however, that without the consent of the
holders of each Debt Security so affected, no such supplemental indenture shall
(a) reduce the percentage in principal amount of Debt Securities of any series
whose holders must consent to an amendment, (b) reduce the rate of or extend the
time for payment of interest on any Debt Security or coupon or reduce the amount
of any payment to be made with respect to any coupon, (c) reduce the principal
of or extend the stated maturity of any Debt Security, (d) reduce the premium
payable upon the redemption of any Debt Security or change the time at which any
Debt Security may or shall be redeemed, (e) make any Debt Security payable in a
currency other than that stated in the Debt Security, (f) in the case of any
Subordinated Debt Security or coupons appertaining thereto, make any change in
the provisions of the Indenture to subordination that adversely affects the
rights of any holder under the provisions, (g) release any security that may
have been granted with respect to the Debt Securities, (h) impair the right of a
holder of Debt Securities to receive payment of principal of and interest on
such holder's Debt Securities on or after the due dates therefor or to institute
suit for the enforcement of or with respect to such holder's Debt Securities,
(i) make any change in the provisions of the Indenture concerning waivers of
defaults or amendments that require unanimous consent, (j) change any obligation
of the Company provided for in the Indenture to pay additional interest with
respect to Bearer Securities, or (k) limit the obligation of the Company to
maintain a paying agency outside the United States for payment on Bearer
Securities or limit the obligation of the Company to redeem certain Bearer
Securities.
The consent of the holders of Debt Securities is not necessary under the
Indenture to approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
(Section 9.02)
After an amendment under the Indenture becomes effective, the Company is
required to mail to holders of the Debt Securities of all affected series a
notice briefly describing such amendment. However, the failure to give such
notice, or any defect therein, will not impair or affect the validity of the
amendment. (Section 9.01)
Consolidation, Merger, and Sale of Assets
The Company may not consolidate with or merge with or into any person, or
convey, transfer or lease all or substantially all its assets, or permit any
person to consolidate with or merge into or convey, transfer or lease
substantially all its assets to the Company, unless the following conditions
have been satisfied:
(a) either (1) Company shall be the continuing person in the case
of a merger, or (2) the resulting, surviving or transferee person, if other
than the Company (the "Successor Company"), shall be a corporation
organized and existing under the laws of the United States, any State, or
the District of Columbia and shall expressly assume all the obligations of
the
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Company under the Debt Securities and coupons and the Indenture;
(b) immediately after giving effect to the transaction (and
treating any indebtedness that becomes an obligation of the Successor
Company or any subsidiary of the Company as a result of the transaction as
having been incurred by the Successor Company or the subsidiary at the time
of the transaction), no Default or Event of Default would occur or be
continuing;
(c) the Successor Company waives any right to redeem any Bearer
Security under circumstances in which the Successor Company would be
entitled to redeem the Bearer Security but the Company would not have been
so entitled to redeem if the consolidation, merger, conveyance, transfer or
lease had not occurred; and
(d) the Company shall have delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that the consolidation,
merger or transfer complies with the Indenture. (Section 10.01)
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 as described in the preceding
paragraph, the successor resulting from such consolidation or into which the
Company is merged or the transferee or lessee to which such conveyance, transfer
or lease is made, will succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Indenture, and thereafter,
except in the case of a lease, the predecessor (if still in existence) will be
released from its obligations and covenants under the Indenture and all
outstanding Debt Securities. (Section 10.02)
Satisfaction and Discharge of the Indenture; Defeasance
The Indenture shall generally cease to be of any further effect with
respect to a series of Debt Securities if (a) the Company has delivered to the
Trustee for cancellation all Debt Securities of that series (with certain
limited exceptions), or (b) all Debt Securities and coupons of the series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year, and the Company shall have
deposited with the Trustee as trust funds the entire amount sufficient to pay at
maturity or upon redemption all the Debt Securities and coupons of that series
(and if, in either case, the Company shall also pay or cause to be paid all
other sums payable under the Indenture by the Company).
In addition, the Company shall have a "legal defeasance option" (pursuant
to which it may terminate, with respect to the Debt Securities of a particular
series, all its obligations under the Debt Securities of that series and the
Indenture with respect to the Debt Securities of that series) and a "covenant
defeasance option" (pursuant to which it may terminate, with respect to the Debt
Securities of a particular series, its obligations with respect to the Debt
Securities under certain specified covenants contained in the Indenture). If the
Company exercises its legal defeasance option with respect to a series of Debt
Securities, payment of that series of Debt Securities may not be accelerated
because of an Event of Default. If the Company exercises its covenant defeasance
option with respect to a series of Debt Securities, payment of that series of
Debt Securities may not be accelerated because of an Event of Default related to
the specified covenants. (Section 11.02)
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to the Debt Securities of a series only if
(a) the Company irrevocably deposits in trust with the Trustee cash or U.S.
Government Obligations (as defined in the Indenture) for the payment of
principal,
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premium, and interest with respect to that series of Debt Securities to maturity
or redemption, as the case may be, (b) the Company delivers to the Trustee a
certificate from a nationally recognized firm of independent accountants
expressing their opinion that the payments of principal and interest when due
and without reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in such
amounts as will be sufficient to pay the principal, premium and interest when
due with respect to all the Debt Securities of that series to maturity or
redemption, as the case may be, (c) 123 days pass after the deposit is made and
during the 123-day period no default described in clause (g) or (h) under
"Description of Debt Securities -- Events of Default and Remedies" with respect
to the Company occurs that is continuing at the end of the period, (d) no
Default has occurred and is continuing on the date of the deposit and after
giving effect thereto, (e) the deposit does not constitute a default under any
other agreement binding on the Company and, in the case of Subordinated Debt
Securities, is not prohibited by the provisions of the Indenture concerning
subordination, (f) the Company delivers to the Trustee an opinion of counsel to
the effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of
1940, (g) the Company shall have delivered to the Trustee an opinion of counsel
addressing certain federal income tax matters to the defeasance, and (h) the
Company delivers to the Trustee an officers' certificate and an opinion of
counsel, each stating that all conditions precedent to the defeasance and
discharge of the Debt Securities of the series as contemplated by the Indenture
have been complied with. (Section 11.03)
The Trustee shall hold in trust cash or U.S. Government Obligations
deposited with it as described above and shall apply the deposited cash and the
proceeds from deposited U.S. Government Obligations to the payment of principal,
premium, and interest with respect to the Debt Securities and coupons of the
defeased series. In the case of Subordinated Debt Securities and coupons related
thereto, the money and U.S. Government Obligations so held in trust will not be
subject to the subordination provisions of the Indenture. (Section 11.04)
The Trustee
The Company may appoint a separate Trustee for any series of Debt
Securities. As used herein in the description of a series of Debt Securities,
the term "Trustee" refers to the Trustee appointed with respect to the series of
Debt Securities. (Section 7.08)
The Company may maintain banking and other commercial relationships with
the Trustee and its affiliates in the ordinary course of business, and the
Trustee may own Debt Securities.
Governing Law
The Indenture provides that it and the Debt Securities will be governed by,
and construed in accordance with, the laws of the State of New York without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
DESCRIPTION OF CAPITAL STOCK
The Company's authorized capital consists of 45,000,000 shares of $.01 par
value Common Stock and 1,000,000 shares of $.01 par value Preferred Stock.
Common Stock
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Each share of Common Stock is entitled to share equally in dividends from
sources legally available therefor when, as, and if declared by the Board of
Directors and, upon liquidation or dissolution of the Company, whether voluntary
or involuntary, to share equally in the assets of the Company available for
distribution to the holders of the Company's Common Stock. The Company has not
paid any cash dividends since its inception. The Company's payment of dividends
during a quarter is limited by the Company's Amended and Restated Credit
Agreement dated November 12, 1997, as amended, to amounts that are less than 50%
of the Company's average net income for the previous four quarters. Each holder
of Common Stock is entitled to one vote per share for all purposes. The holders
of Common Stock have no preemptive rights and there is no cumulative voting,
redemption right or right of conversion with respect to the Common Stock. All
outstanding shares of Common Stock and all shares to be sold and issued by the
Company pursuant to the offerings under this Prospectus will be fully paid and
nonassessable. The Board of Directors is authorized to issue additional shares
of Common Stock within the limits authorized by the Company's Certificate of
Incorporation and without stockholder action.
Section 203 Of The Delaware Law. Generally, Section 203 of the Delaware
General Corporation Law ("DGCL"), to which the Company is subject, prohibits a
publicly held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless
(i) prior to the date of the business combination, the transaction is approved
by the board of directors of the corporation, (ii) upon consummation of the
transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owns at least 85% of the outstanding
voting stock, or (iii) on or after such date the business combination is
approved by the board and by the affirmative vote of at least 66 2/3% of the
outstanding voting stock which is not owned by the interested stockholder. A
"business combination" includes a merger, asset sale and other transactions
resulting in a financial benefit to the stockholder. An "interested stockholder"
is a person who, together with affiliates and associates, owns (or within three
years, did own) 15% or more of the corporation's voting stock. The provisions of
Section 203 may have the effect of delaying, deferring or preventing a change of
control of the Company.
Director Liability. The Company's Certificate Of Incorporation (the
"Charter") contains a provision that limits the liability of the Company's
directors to the fullest extent permitted by the DGCL. The provision eliminates
the personal liability of directors to the Company and its stockholders for
monetary damages for breaches of their fiduciary duty of care. As a result,
stockholders may be unable to recover monetary damages against directors for
negligent or grossly negligent acts or omissions in violation of their duty of
care. The provision does not change the liability of a director for breach of
his duty of loyalty to the Company or to stockholders, for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, for the declaration or payment of dividends in violation of Delaware law or
in respect of any transaction from which a director received an improper
personal benefit. The Charter provides that if the DGCL is amended to further
limit such liability, then the liability of Company directors will be limited or
eliminated to the maximum extent permitted by law as so amended.
Rights Plan. On August 4, 1997, the Board of Directors declared a dividend
distribution of one preferred stock purchase right (a "Right") for each
outstanding share of Common Stock, payable to the holders of record of the
Common Stock as of the close of business on August 20, 1997. The Rights also are
issuable upon the issuance of additional shares of Common Stock prior to the
time the Rights are redeemed or expire. Accordingly, the Rights also will be
issued to holders of Common Stock purchased in any offering of Common Stock
under a Prospectus Supplement. Initially, the Rights are represented by the
certificate for the Common Stock and will trade only with the Common Stock. The
Rights will expire on August 4, 2007 unless earlier redeemed by the Company.
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Except as set forth below, each Right, when it becomes exercisable,
entitles the registered holder to purchase from the Company one one-thousandth
of a share of a series of preferred stock, designated as Series A Junior
Participating Preferred Stock, par value $.001 per share (the "Series A
Preferred Stock"), at a price of $150 per one one-thousandth of a share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between the
Company and BankBoston, N.A., as Rights Agent. A copy of the Rights Agreement is
incorporated by reference in the Registration Statement of which this Prospectus
is a part. The following summary of the Rights is qualified in its entirety by
reference to the Rights Agreement. The terms of the Series A Preferred Stock are
summarized below and are set forth in a Certificate of Designations attached as
Exhibit A to the Rights Agreement. See below "Preferred Stock--Series A Junior
Participating Preferred Stock."
In the event that any person or group (an "Acquiring Person") acquires or
obtains the right to acquire beneficial ownership of 15% or more of the
outstanding Common Stock, each holder of a Right other than the Acquiring Person
generally will thereafter have the right for a 60 day period following the later
of the date of such event and the effectiveness of an appropriate registration
statement (or such other longer period set by the Board of Directors) to receive
upon exercise of the Right that number of units of one one-thousandth of a share
of Series A Preferred Stock (or, under certain circumstances, Common Shares or
other securities) having an average market value during a specified time period
(immediately prior to the occurrence of a Person becoming an Acquiring Person)
of two times the exercise price of the Right (such right being called the
"Subscription Right"). In addition, generally, in the event that the Company is
acquired in a merger or other business combination transaction, or in the event
that 50% or more of the Company's consolidated assets or earning power is sold
after a person becomes an Acquiring Person, proper provision will be made so
that each holder of a Right will thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the Right, the number of
shares of common stock of the acquiring company that at the time of such
transaction will have a market value of two times the exercise price of the
Right.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on the Rights being redeemed or a substantial
number of Rights being acquired or approval of the Board of Directors. However,
the Rights generally should not interfere with any merger or other business
combination approved by the Board of Directors because, among other things, the
Board of Directors may, at its option and subject to certain conditions, redeem
all but not less than all of the then outstanding rights at a redemption price
of $.001 per Right. There are restrictions on the Board of Director's ability to
redeem the Rights for a period of 365 days after a meeting of stockholders or
stockholder action that results in a majority of the Board of Directors in
office immediately after the effective date of that action not having been
nominated by the Board of Directors serving immediately prior to that action.
These restrictions are meant to prevent an Acquiring Person from circumventing
the Rights Plan by nominating or electing directors who would redeem the Rights.
Preferred Stock
The Company is authorized to issue 1,000,000 shares of Preferred Stock. No
shares of Preferred Stock have been issued. However, at the present time, 75,000
shares of Preferred Stock are designated as the Series A Junior Participating
Preferred Stock (the "Series A Preferred Stock") and are reserved for issuance
pursuant to the Company's Rights Plan. See above, "Common Stock--Rights Plan"
and below "--Series A Junior Participating Preferred Stock." Under the Charter,
the Board of Directors may from time to time establish and issue one or more
series of Preferred Stock and fix the designations, powers,
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preferences and rights of the shares of such series and the qualifications,
limitations or restrictions thereon, including, but not limited to, dividend
rights, dividend rates, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), and liquidation preferences. The
number of authorized shares of Preferred Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the voting power of all of the then
outstanding shares of the Capital Stock of the Company entitled to vote
generally in the election of directors (the "Voting Stock") voting together as a
single class, without a separate vote of the holders of the Preferred Stock, or
any series thereof, unless a vote of any such holders is required pursuant to
any certificate of designation relating to a series of Preferred Stock.
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. Certain other terms of a particular series of Preferred Stock will
be described in the Prospectus Supplement relating to that series. If so
indicated in the Prospectus Supplement, the terms of any such series may differ
from the terms set forth below. The description of certain provisions of the
Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Company's Charter and bylaws and the certificate of designation
relating to each such series of Preferred Stock, which will be filed with the
Commission in connection with the offering of such series of Preferred Stock.
General. Subject to limitations prescribed by Delaware law and the
Company's Charter and bylaws, the Board of Directors is authorized to fix the
number of shares constituting each series of Preferred Stock and the
designations, relative rights, preferences and limitations thereof, including
such provisions as may be desired concerning voting, redemption, dividends,
dissolution, the distribution of assets, conversion or sinking funds, and such
other subjects or matters as may be fixed by resolution of the Board of
Directors or a duly authorized committee thereof. The Preferred Stock will, when
issued, be fully paid and nonassessable upon issuance against the full payment
of the purchase price therefor, and will not have, or be subject to, any
preemptive or similar rights.
Reference is made to the Prospectus Supplement relating to the series of
Preferred Stock offered thereby for specific terms, including the following:
(i) the class or series, title and stated value of such Preferred Stock;
(ii) the number of shares of such Preferred Stock offered, the liquidation
preference per share and the offering price of such Preferred Stock; (iii) the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation
thereof applicable to such Preferred Stock; (iv) whether dividends on such
Preferred Stock shall be cumulative and, if cumulative, the date from which
dividends on such Preferred Stock shall accumulate; (v) the procedures for any
auction and remarketing, if any, for such Preferred Stock; (vi) provisions for a
sinking fund, if any, for such Preferred Stock; (vii) provisions for redemption,
if applicable, of such Preferred Stock; (viii) any listing of such Preferred
Stock on any securities exchange; (ix) the terms and conditions, if applicable,
upon which such Preferred Stock will be convertible into other securities of the
Company, including the conversion price (or manner of calculation thereof);
(x) whether interests in such Preferred Stock will be represented by Depositary
Shares; (xi) a discussion of certain federal income tax considerations
applicable to such Preferred Stock; and (xii) any other material terms,
preferences, rights, limitations or restrictions of such Preferred Stock.
Rank. Unless otherwise specified in the Prospectus Supplement, the
Preferred Stock will, with respect to (as applicable) dividend rights and rights
upon liquidation, dissolution or winding up of the Company, rank (i) senior to
all classes or series of common stock of the Company and to all equity
securities of the Company the terms of which provide that such equity securities
are subordinated to such Preferred Stock; (ii) on a parity with all equity
securities of the Company other than those referred to in clauses (i) and (iii);
and (iii) junior to all equity securities of the Company which the terms of such
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Preferred Stock provide will rank senior to it. For these purposes, the term
"equity securities" does not include convertible debt securities.
Dividends. Holders of shares of the Preferred Stock of each series shall be
entitled to receive, when, as and if declared by the Board of Directors of the
Company, out of funds legally available therefor, cash dividends at such rates
and on such dates as will be set forth in the applicable Prospectus Supplement.
Different series of the Preferred Stock may be entitled to dividends at
different rates or based upon different methods of determination. Such rates may
be fixed or variable or both. Each such dividend shall be payable to holders of
record as they appear on the stock transfer books of the Company on such record
dates as shall be fixed by the Board of Directors of the Company or a duly
authorized committee thereof.
Dividends on any series of the Preferred Stock may be cumulative or non-
cumulative, as provided in the applicable Prospectus Supplement.Dividends, if
cumulative, will accumulate from and after the date set forth in the applicable
Prospectus Supplement. If the Board of Directors of the Company fails to declare
a dividend payable on a dividend payment date on any series of the Preferred
Stock for which dividends are non-cumulative, then the holders of such series of
the Preferred Stock will have no right to receive a dividend in respect of the
dividend period ending on such dividend payment date, and the Company will have
no obligation to pay the dividend accrued for such period, regardless of whether
dividends on such series are declared payable on any future dividend payment
date.
If any shares of the Preferred Stock of any series are outstanding, no full
dividends shall be declared or paid or set apart for payment on any capital
stock of the Company ranking, as to dividends, on a parity with or junior to the
Preferred Stock of such series for any period, unless (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof set apart for such payment on the Preferred Stock of such
series for all past dividend periods and the then current dividend period, or
(ii) if such series of Preferred Stock does not have a cumulative dividend, full
dividends for the then current dividend period have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for such payment on the Preferred Stock of such series. When dividends
are not paid in full (or a sum sufficient for such full payment is not so set
apart) upon the shares of Preferred Stock of any series and the shares of any
other series of preferred stock ranking on a parity as to dividends with the
Preferred Stock of such series, all dividends declared upon shares of Preferred
Stock of such series and any other series of preferred stock ranking on a parity
as to dividends with such Preferred Stock shall be declared pro rata so that the
amount of dividends declared per share on the Preferred Stock of such series and
such other series of preferred stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on the shares of
Preferred Stock of such series (which shall not include any accumulation in
respect of unpaid dividends for prior dividend periods if such Preferred Stock
does not have a cumulative dividend) and such other series of preferred stock
bear to each other. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on Preferred Stock of
such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
set apart for payment for all past dividend periods and the then current
dividend period and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set aside for payment for the then current dividend
period, no dividends (other than in shares of Common Stock or other capital
stock ranking junior to the Preferred Stock of such series as
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to dividends and upon liquidation, dissolution or winding up) shall be declared
or paid or set aside for payment or other distribution shall be declared or made
upon the Common Stock, or any other capital stock of the Company ranking junior
to or on a parity with the Preferred Stock of such series as to dividends or
upon liquidation, nor shall any shares of Common Stock, or any other capital
stock of the Company ranking junior to or on a parity with the Preferred Stock
of such series as to dividends or upon liquidation, dissolution or winding up be
redeemed, purchased or otherwise acquired for any consideration (or any moneys
be paid to or made available for a sinking fund for the redemption of any such
shares) by the Company (except by conversion into or exchange for other capital
stock of the Company ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation, dissolution or winding up).
Redemption. The terms, if any, on which shares of a series Preferred Stock
may be subject to mandatory redemption or redemption at the option of the
Company, in whole or in part, will be set forth in the Prospectus Supplement
relating to such series.
Rights Upon Liquidation. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, then, before any distribution or
payment shall be made to the holders of any Common Stock, or any other series of
capital stock of the Company ranking junior to such series of Preferred Stock
upon liquidation, dissolution or winding up, the holders of each series of
Preferred Stock shall be entitled to receive out of assets of the Company
legally available for distribution to stockholders liquidating distributions in
the amount of the liquidation preference per share (set forth in the applicable
Prospectus Supplement), plus an amount equal to all accrued and unpaid dividends
for the then current dividend period and, if such series of the Preferred Stock
is cumulative, for all dividend periods prior thereto, all as set forth in the
Prospectus Supplement with respect to such shares.
Voting Rights. Holders of a series of Preferred Stock will not have any
voting rights, except as from time to time required by law or as indicated in
the applicable Prospectus Supplement; provided, that the holders of shares of
any series of Preferred Stock will not be entitled to more than one vote per
share, when voting as a class with the holders of shares of the Common Stock and
if such Preferred Stock is convertible into Common Stock, then holders can
receive one vote on an as converted basis.
Conversion Rights. The terms and conditions, if any, upon which shares of
any series of Preferred Stock are convertible into Common Stock, Debt Securities
or another series of Preferred Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
shares of Common Stock or such other series of Preferred Stock or the principal
amount of Debt Securities into which the Preferred Stock is convertible, the
conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of such
series of Preferred Stock or the Company, the events requiring an adjustment of
the conversion price and provisions affecting conversion in the event of the
redemption of such series of Preferred Stock.
Transfer Agent And Registrar. The transfer agent and registrar for the
Preferred Stock will be set forth in the applicable Prospectus Supplement.
Series A Junior Participating Preferred Stock
The Series A Preferred Stock purchasable upon exercise of the Rights will
be nonredeemable and will be junior to any other series of preferred stock the
Company may issue (unless otherwise provided in the terms of such stock). See
above "--Common Stock--Rights Plan". Each share of Series A Preferred Stock will
have a preferential quarterly dividend in an amount equal to the greater of
$10.00 and 1,000
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times the dividend declared on each Common Share. In the event of liquidation,
the holders of Series A Preferred Stock will receive a preferred liquidation
payment per share equal to the greater of $5,000 and 1,000 times the payment
made per share of Common Stock. Each share of Series A Preferred Stock will have
one vote, voting together with the Common Stock. In the event of any merger,
consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Series A Preferred Stock will be entitled to receive
1,000 times the amount and type of consideration received per share of Common
Stock. The rights of the Series A Preferred Stock as to dividends, liquidation
and voting, and in the event of mergers and consolidations, are protected by
customary anti-dilution provisions. Fractional shares of Series A Preferred
Stock in integral multiples of one one-thousandth of a share of Series A
Preferred Stock will be issuable; however, the Company may elect to distribute
depositary receipts in lieu of such fractional shares. In lieu of fractional
shares other than fractions that are multiples of one one-thousandth of a share,
an adjustment in cash will be made based on the market price of the Series A
Preferred Stock on the last trading date prior to the date of exercise. The
terms of the Series A Preferred Stock are set forth in a Certificate of
Designations filed with the Delaware Secretary of State, a form of which is
attached as Exhibit A to the Rights Agreement. The Rights Agreement is
incorporated by reference in the Registration Statement of which this Prospectus
is a part.
Description Of Depositary Shares
General. The Company may issue Depositary Shares, each of which will
represent a fractional interest of a share of a particular series of Preferred
Stock, as specified in the applicable Prospectus Supplement. Shares of a series
of Preferred Stock represented by Depositary Shares will be deposited under a
separate Deposit Agreement (each, a "Deposit Agreement") among the Company, the
depositary named therein (the "Preferred Stock Depositary") and the holders from
time to time of the depositary receipts issued by the Preferred Stock Depositary
which will evidence the Depositary Shares ("Depositary Receipts"). Subject to
the terms of the Deposit Agreement, each owner of a Depositary Receipt will be
entitled, in proportion to the fractional interest of a share of a particular
series of Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipt, to all the rights and preferences of the series of Preferred
Stock represented by such Depositary Shares (including dividend, voting,
conversion, redemption and liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of a series of Preferred Stock by the Company to the Preferred
Stock Depositary, the Company will cause the Preferred Stock Depositary to
issue, on behalf of the Company, the Depositary Receipts. Copies of the
applicable form of Deposit Agreement and Depositary Receipt may be obtained from
the Company upon request. The statements made hereunder relating to the Deposit
Agreement and the Depositary Receipts to be issued thereunder are summaries of
certain provisions thereof and do not purport to be complete and are subject to,
and qualified in their entirety by reference to, all of the provisions of the
applicable Deposit Agreement and related Depositary Receipts.
Dividends And Other Distributions. The Preferred Stock Depositary will
distribute any cash dividends or other cash distributions received in respect of
a series of Preferred Stock to the record holders of Depositary Receipts
evidencing the related Depositary Shares in proportion to the number of such
Depositary Receipts owned by such holders, subject to certain obligations of
holders to file proofs, certificates and other information and to pay certain
charges and expenses to the Preferred Stock Depositary.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Receipts entitled thereto, subject to certain
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obligations of holders to file proofs, certificates and other information and to
pay certain charges and expenses to the Preferred Stock Depositary, unless the
Preferred Stock Depositary determines that it is not feasible to make such
distribution, in which case the Preferred Stock Depositary may, with the
approval of the Company, sell such property and distribute the net proceeds from
such sale to such holders.
Withdrawal Of Preferred Stock. Upon surrender of the Depositary Receipts at
the corporate trust office of the Preferred Stock Depositary (unless the related
Depositary Shares have previously been called for redemption), the holders
thereof will be entitled to delivery at such office, to or upon such holder's
order, of the number of whole or fractional shares of the series of Preferred
Stock and any money or other property represented by the Depositary Shares
evidenced by such Depositary Receipts. Holders of Depositary Receipts will be
entitled to receive whole or fractional shares of the related series of
Preferred Stock on the basis of the proportion of Preferred Stock represented by
each Depositary Share as specified in the applicable Prospectus Supplement, but
holders of such shares of Preferred Stock will not thereafter be entitled to
receive Depositary Shares therefor. If the Depositary Receipts delivered by the
holder evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of shares of Preferred Stock to be
withdrawn, the Preferred Stock Depositary will deliver to such holder at the
same time a new Depositary Receipt evidencing such excess number of Depositary
Shares.
Redemption. Whenever the Company redeems shares of a series of Preferred
Stock held by the Preferred Stock Depositary, the Preferred Stock Depositary
will redeem as of the same redemption date the number of Depositary Shares
representing shares of such series of Preferred Stock so redeemed, provided the
Company shall have paid in full to the Preferred Stock Depositary the redemption
price of the Preferred Stock to be redeemed plus an amount equal to any accrued
and unpaid dividends thereon to the date fixed for redemption. The redemption
price per Depositary Share will be equal to the corresponding proportion of the
redemption price and any other amounts per share payable with respect to such
series of Preferred Stock. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected pro rata (as
nearly as may be practicable without creating fractional Depositary Shares) or
by any other equitable method determined by the Company. From and after the date
fixed for redemption, all dividends in respect of the shares of a series of
Preferred Stock so called for redemption will cease to accrue, the Depositary
Shares so called for redemption will no longer be deemed to be outstanding and
all rights of the holders of the Depositary Receipts evidencing the Depositary
Shares so called for redemption will cease, except the right to receive any
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Receipts were entitled upon such redemption and
surrender thereof to the Preferred Stock Depositary.
Voting. Upon receipt of notice of any meeting at which the holders of a
series of Preferred Stock deposited with the Preferred Stock Depositary are
entitled to vote, the Preferred Stock Depositary will mail the information
contained in such notice of meeting to the record holders of the Depositary
Receipts evidencing the Depositary Shares which represent such series of
Preferred Stock. Each record holder of Depositary Receipts evidencing Depositary
Shares on the record date (which will be the same date as the record date for
such series of Preferred Stock) will be entitled to instruct the Preferred Stock
Depositary as to the exercise of the voting rights pertaining to the amount of
Preferred Stock represented by such holder's Depositary Shares. The Preferred
Stock Depositary will vote the amount of such series of Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all reasonable action which may be deemed
necessary by the Preferred Stock Depositary in order to enable the Preferred
Stock Depositary to do so. The Preferred Stock Depositary will abstain from
voting the amount of such series of Preferred Stock represented by such
Depositary
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Shares to the extent it does not receive specific instructions from the holders
of Depositary Receipts evidencing such Depositary Shares. The Preferred Stock
Depositary shall not be responsible for any failure to carryout any instruction
to vote, or for the manner or effect of any such vote made, as long as any such
action or non-action is in good faith and does not result from negligence or
willful misconduct of the Preferred Stock Depositary.
Liquidation Preference. In the event of the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary, the holders of each
Depositary Receipt will be entitled to the fraction of the liquidation
preference accorded each share of Preferred Stock represented by the Depositary
Shares evidenced by such Depositary Receipt, as set forth in the applicable
Prospectus Supplement.
Conversion. The Depositary Shares, as such, are not convertible into Common
Stock or any other securities or property of the Company. Nevertheless, if so
specified in the applicable Prospectus Supplement relating to an offering of
Depositary Shares, the Depositary Receipts may be surrendered by holders thereof
to the Preferred Stock Depositary with written instructions to the Preferred
Stock Depositary to instruct the Company to cause conversion of a series of
Preferred Stock represented by the Depositary Shares evidenced by such
Depositary Receipts into whole shares of Common Stock, other shares of Preferred
Stock or other shares of capital stock of the Company, and the Company has
agreed that upon receipt of such instructions and any amounts payable in respect
thereof, it will cause the conversion thereof utilizing the same procedures as
those provided for delivery of Preferred Stock to effect such conversion. If the
Depositary Shares evidenced by a Depositary Receipt are to be converted in part
only, a new Depositary Receipt or Receipts will be issued for any Depositary
Shares not to be converted. No fractional shares of Common Stock will be issued
upon conversion, and if such conversion would result in a fractional share being
issued, an amount will be paid in cash by the Company equal to the value of the
fractional interest based upon the closing price of the Common Stock on the last
business day prior to the conversion.
Amendment And Termination Of The Deposit Agreement. The form of Depositary
Receipt evidencing the Depositary Shares which represent the Preferred Stock and
any provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However, any amendment
that materially and adversely alters the rights of the holders of Depositary
Receipts or that would be materially and adversely inconsistent with the rights
granted to the holders of the related series of Preferred Stock will not be
effective unless such amendment has been approved by the existing holders of at
least two thirds of the Depositary Shares evidenced by the Depositary Receipts
then outstanding. No amendment shall impair the right, subject to certain
exceptions in the Deposit Agreement, of any holder of Depositary Receipts to
surrender any Depositary Receipt with instructions to deliver to the holder the
related series of Preferred Stock and all money and other property, if any,
represented thereby, except in order to comply with law. Every holder of an
outstanding Depositary Receipt at the time any such amendment becomes effective
shall be deemed, by continuing to hold such Receipt, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby.
The Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the Preferred Stock Depositary if a majority of
each series of Preferred Stock subject to such Deposit Agreement consents to
such termination, whereupon the Preferred Stock Depositary shall deliver or make
available to each holder of Depositary Receipts, upon surrender of the
Depositary Receipts held by such holder, such number of whole or fractional
shares of each such series of Preferred Stock as are represented by the
Depositary Shares evidenced by such Depositary Receipts together with any other
property held by the Preferred Stock Depositary with respect to such Depositary
Receipts. In
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addition, the Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares issued thereunder shall have been redeemed,
(ii) there shall have been a final distribution in respect of each series of
Preferred Stock subject to such Deposit Agreement in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Receipts evidencing the
Depositary Shares representing such series of Preferred Stock or (iii) each
share of Preferred Stock subject to such Deposit Agreement shall have been
converted into capital stock of the Company not so represented by Depositary
Shares.
Charges Of Preferred Stock Depositary. The Company will pay all transfer
and other taxes and governmental charges arising solely from the existence of
the Deposit Agreement. In addition, the Company will pay the fees and expenses
of the Preferred Stock Depositary in connection with the performance of its
duties under the Deposit Agreement. However, holders of Depositary Receipts will
pay certain transfer and other taxes and governmental charges, as well as the
fees and expenses of the Preferred Stock Depositary for any duties requested by
such holders to be performed which are outside of those expressly provided for
in the Deposit Agreement.
Resignation And Removal Of Preferred Stock Depositary. The Preferred Stock
Depositary may resign at any time by delivering to the Company notice of its
election to do so, and the Company may at any time remove the Preferred Stock
Depositary, any such resignation or removal to take effect upon the appointment
of a successor Preferred Stock Depositary. A successor Preferred Stock
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
Miscellaneous. The Preferred Stock Depositary will forward to holders of
Depositary Receipts any reports and communications from the Company which are
received by the Preferred Stock Depositary with respect to the related Preferred
Stock.
Neither the Preferred Stock Depositary nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its control,
performing its obligations under the Deposit Agreement. The obligations of the
Company and the Preferred Stock Depositary under the Deposit Agreement will be
limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of a series of
Preferred Stock represented by the Depositary Shares), gross negligence or
willful misconduct, and the Company and the Preferred Stock Depositary will not
be obligated to prosecute or defend any legal proceeding in respect of any
Depositary Receipts, Depositary Shares or shares of a series of Preferred Stock
represented thereby unless satisfactory indemnity is furnished. The Company and
the Preferred Stock Depositary may rely on written advice of counsel or
accountants, or information provided by persons presenting shares of a series of
Preferred Stock represented thereby for deposit, holders of Depositary Receipts
or other persons believed in good faith to be competent to give such
information, and on documents believed in good faith to be genuine and signed by
a proper party.
In the event the Preferred Stock Depositary shall receive conflicting
claims, requests or instructions from any holders of Depositary Receipts, on the
one hand, and the Company, on the other hand, the Preferred Stock Depositary
shall be entitled to act on such claims, requests or instructions received from
the Company.
Description Of Warrants
The Company may issue Warrants for the purchase of Debt Securities,
Preferred Stock and
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Common Stock. Warrants may be issued independently or together with Debt
Securities, Preferred Stock or Common Stock offered by any Prospectus Supplement
and may be attached to or separate from such Debt Securities, Preferred Stock or
Common Stock. Each series of Warrants will be issued under a separate warrant
agreement (a "Warrant Agreement") to be entered into between the Company and a
bank or trust company, as Warrant Agent (the "Warrant Agent"), all as set forth
in the Prospectus Supplement relating to the particular issue of offered
Warrants. The Warrant Agent will act solely as an agent of the Company in
connection with the Warrant certificates relating to the Warrants and will not
assume any obligation or relationship of agency or trust for or with any holders
of Warrant certificates or beneficial owners of Warrants. The following
summaries of certain provisions of the Warrant Agreements and Warrants do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Warrant Agreement and the Warrant
certificates relating to each series of Warrants which will be filed with the
Commission and incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus is a part at or prior to the time of the
issuance of such series of Warrants.
General. If Warrants are offered, the applicable Prospectus Supplement will
describe the terms of such Warrants, including, in the case of Warrants for the
purchase of Debt Securities, the following where applicable: (i) the offering
price; (ii) the denominations and terms of the series of Debt Securities
purchasable upon exercise of such Warrants and whether such Debt Securities are
Senior Debt Securities or Subordinated Debt Securities; (iii) the designation
and terms of any series of Debt Securities with which such Warrants are being
offered and the number of such Warrants being offered with each such Debt
Security; (iv) the date, if any, on and after which such Warrants and any
related series of Debt Securities will be transferable separately; (v) the
principal amount of the series of Debt Securities purchasable upon exercise of
each such Warrant and the price at which such principal amount of Debt
Securities of such series may be purchased upon such exercise; (vi) the date on
which the right to exercise such Warrants shall commence and the date (the
"Expiration Date") on which such right shall expire; (vii) whether the Warrants
will be issued in registered or bearer form; (viii) any special United States
Federal income tax consequences; (ix) the terms, if any, on which the Company
may accelerate the date by which the Warrants must be exercised; and (x) any
other terms of such Warrants.
In the case of Warrants for the purchase of Preferred Stock or Common
Stock, the applicable Prospectus Supplement will describe the terms of such
Warrants, including the following where applicable: (i) the offering price;
(ii) the aggregate number of shares purchasable upon exercise of such Warrants
and the exercise price; (iii) the designation and terms of the series of
Preferred Stock or Common Stock with which such Warrants are being offered, if
any, and the number of such Warrants being offered with each such Preferred
Stock or Common Stock; (iv) the date, if any, on and after which such Warrants
and any related series of Preferred Stock or Common Stock will be transferable
separately; (v) the date on which the right to exercise such Warrants shall
commence and the Expiration Date; (vi) any special United States Federal income
tax consequences; (vii) the terms, if any, on which the Company may accelerate
the date by which the Warrants must be exercised; and (viii) any other terms of
such Warrants.
Warrant certificates may be exchanged for new Warrant certificates of
different denominations, may (if in registered form) be presented for
registration of transfer, and may be exercised at the corporate trust office of
the applicable Warrant Agent or any other office indicated in the applicable
Prospectus Supplement. Prior to the exercise of any Warrant to purchase Debt
Securities, holders of such Warrants will not have any of the rights of holders
of the Debt Securities purchasable upon such exercise, including the right to
receive payments of principal, premium, if any, or interest, if any, on such
Debt Securities or to enforce covenants in the applicable Indenture. Prior to
the exercise of any Warrants to purchase Preferred Stock or Common Stock,
holders of such Warrants will not have any rights of holders
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of such Preferred Stock or Common Stock, including the right to receive payments
of dividends, if any, on such Capital Stock, or to exercise any applicable right
to vote.
Exercise Of Warrants. Each Warrant will entitle the holder thereof to
purchase such principal amount of Debt Securities or number of shares of
Preferred Stock or Common Stock, as the case may be, at such exercise price as
shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the offered Warrants. After the close of business on the
Expiration Date (or such later date to which such Expiration Date may be
extended by the Company),unexercised Warrants will become void.
Warrants may be exercised by delivering to the applicable Warrant Agent
payment as provided in the applicable Prospectus Supplement of the amount
required to purchase the Debt Securities, Preferred Stock or Common Stock, as
the case may be, purchasable upon such exercise together with certain
information set forth on the reverse side of the Warrant certificate. Warrants
will be deemed to have been exercised upon receipt of payment of the exercise
price in cash or by certified or official bank check, subject to the receipt
within five (5) business days of the Warrant certificate evidencing such
Warrants. Upon receipt of such payment at the corporate trust office of the
applicable Warrant Agent or any other office indicated in the applicable
Prospectus Supplement, the Company will, as soon as practicable, issue and
deliver the Debt Securities, Preferred Stock or Common Stock, as the case maybe,
purchasable upon such exercise. If fewer than all of the Warrants represented
by such Warrant certificate are exercised, a new Warrant certificate will be
issued for the remaining amount of Warrants.
Amendments And Supplements To Warrant Agreements. The Warrant Agreements
may be amended or supplemented without the consent of the holders of the
Warrants issued thereunder to effect changes that are not inconsistent with the
provisions of the Warrants and that do not adversely affect the interests of the
holders of the applicable Warrants.
Warrant Adjustments. The applicable Prospectus Supplement will specify the
manner, if any, in which the exercise price of, and the number or amount of
securities covered by, a Warrant for Preferred Stock or Common Stock is subject
to adjustment in certain circumstances.
PLAN OF DISTRIBUTION
The Company may sell the Securities in and/or outside the United States:
(i) through underwriters; (ii) through dealers acting as principal or as agent;
(iii) directly to a limited number of purchasers or to a single purchaser; or
(iv) through agents. The applicable Prospectus Supplement with respect to any
offering of Securities will set forth the terms of the offering of the
Securities, including the name or names of any underwriters, dealers or agents,
the purchase price of the Securities and the proceeds to the Company from such
sale, any delayed delivery arrangements, any discounts or commissions and other
items constituting compensation allowed or paid to any underwriters, dealers or
agents, any aggregate initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers. Any aggregate initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
If underwriters are used in the sale, the Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The
Securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more
firms acting as underwriters. The underwriter or underwriters with respect to a
particular underwritten offering of Securities will be named in the Prospectus
Supplement relating to such offering and, if an underwriting syndicate is used,
the managing
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underwriter or underwriters will be set forth on the cover of such Prospectus
Supplement. Unless otherwise set forth in the Prospectus Supplement relating
thereto, the obligations of the underwriters to purchase the Securities will be
subject to conditions precedent, and the underwriters will be obligated to
purchase all the Securities if any are purchased.
If dealers are utilized in the sale of Securities in respect of which this
Prospectus is delivered, the Company will sell such Securities to the dealers
acting as principals or agents. The dealers may then resell such Securities to
the public at varying prices to be determined by such dealers at the time of
resale. The terms of the transaction will be set forth in the Prospectus
Supplement relating thereto to the extent required by the Securities Act.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Securities in respect to which this Prospectus is delivered will be
named, and any commissions payable by the Company to such agent will be set
forth, in the Prospectus Supplement relating thereto to the extent required by
the Securities Act. Unless otherwise indicated in the Prospectus Supplement, any
such agent will be acting on a reasonable best efforts basis for the period of
its appointment.
The Securities may be sold directly by the Company to institutional
investors or others, who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any resale thereof. The terms of any such
sales, including the terms of any bidding or auction process, will be described
in the Prospectus Supplement relating thereto.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the future.
Such contracts will be subject only to those conditions set forth in the
applicable Prospectus Supplement, and the Prospectus Supplement will set forth
the commission payable for solicitation of such contracts.
In connection with the offering, the underwriters may purchase and sell the
additional securities in the open market. These transactions may include over-
allotment and stabilizing transactions and purchases to cover short positions
created by the underwriters in connection with the offering. Stabilizing
transactions consist of certain bids or purchases for the purpose of preventing
or retarding a decline in the market price of the securities; and short
positions created by the underwriters involve the sale by the underwriters of a
greater number of securities than they are required to purchase from the Company
in the offering. The underwriters also may impose a penalty bid, whereby selling
concessions allowed to broker-dealers in respect of the securities sold in the
offering may be reclaimed by the underwriters if such securities are repurchased
by the underwriters in stabilizing or covering transactions. These activities
may stabilize, maintain or otherwise affect the market price of the securities,
which may be higher than the price that might otherwise prevail in the open
market; and these activities, if commenced, may be discontinued at any time.
These transactions may be effected in the over-the-counter market or otherwise.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which such agents, dealers or underwriters may be
required to make in respect thereof. Agents, dealers and underwriters may be
customers of, engage in transactions with, or perform services for the Company
in the ordinary course of business or otherwise.
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Each series of Securities, other than the Common Stock, will be a new issue
with no established trading market. The Common Stock is listed on the New York
Stock Exchange. Any Common Stock sold pursuant to a Prospectus Supplement will
be listed on such exchange, subject to official notice of issuance. The Company
may elect to list any series of Debt Securities, Preferred Stock, Depositary
Shares or Warrants on an exchange, but is not obligated to do so. If so
indicated in the applicable Prospectus Supplement, any underwriters or agents to
or through whom Securities are sold by the Company may make a market in such
Securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any Securities.
LEGAL MATTERS
Certain legal matters regarding the validity of the Securities have been
passed upon on behalf of the Company by Bearman Talesnick & Clowdus Professional
Corporation, Denver, Colorado. Attorneys employed by that law firm beneficially
own approximately 15,350 shares of the Company's Common Stock. Vinson & Elkins,
L.L.P., Houston, Texas, as special counsel to the Company, will pass upon the
validity of the issuance of the Debt Securities.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-K of the Company for the year ended December 31,
1997 have been so incorporated in reliance on the report of Arthur Andersen LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The estimates of the proved reserves of the Company as of each of
December 31, 1997 and December 31, 1996, incorporated by reference in this
Registration Statement, are based upon a reserve report prepared by the Company
and audited by Ryder Scott Company and are incorporated by reference herein upon
the authority of that firm as experts in petroleum engineering. The estimates of
proved reserves of the Company as of December 31, 1995, incorporated by
reference in this Registration Statement, are based upon a reserve report
prepared by the Company. Certain portions of this reserve report, exclusive of
the reserves held by the Company's Plains Petroleum Company subsidiary, were
reviewed by Ryder Scott Company, and the other portions, which are held by the
Company's Plains subsidiary, were reviewed by Netherland, Sewell & Associates,
Inc., and are incorporated by reference herein upon the authority of each of
those firms as experts in petroleum engineering.
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No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized. This Prospectus does not constitute an
offer to sell or the solicitation of an offer to buy, any securities other than
the securities to which it relates or an offer to sell or the solicitation of an
offer to buy such securities in any circumstances in which such offer or
solicitation is unlawful. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication that there
has been no change in the affairs of the Company since the date hereof or that
the information contained herein is correct as of any time subsequent to its
date.
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Table Of Contents
Page
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Available Information 6
Incorporation Of Certain Documents By Reference 6
Disclosure Regarding Forward-Looking Statements 7
The Company 8
Use Of Proceeds 8
Ratio Of Earnings To Fixed Charges 8
Description Of The Debt Securities 8
Description Of Capital Stock 23
Plan Of Distribution 34
Legal Matters 36
Experts 36
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses Of Issuance And Distribution.
- -----------------------------------------------------
The estimated expenses of the Offering described in this Registration
Statement are as follows:
Registration Fee...............................................$147,500
Printing and Engraving Expenses................................$ 35,000
Accounting Fees and Expenses...................................$ 5,000
Legal Fees and Expenses........................................$ 35,000
Blue Sky Fees and Expenses.....................................$ 5,000
Trustee and Registrar Fees.....................................$ 5,000
Miscellaneous..................................................$ 17,500
-------
Total:..........................$250,000
=======
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Item 15. Indemnification Of Directors And Officers.
- ---------------------------------------------------
Section 145 of the Delaware General Corporation Law ("DGCL"), inter alia,
empowers a Delaware corporation to indemnify any person who was or is a party or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Similar indemnity is authorized for such persons against
expenses (including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement of any such threatened, pending or
completed action or suit if such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, and provided further that (unless a court of competent jurisdiction
otherwise provides) such person shall not have been adjudged liable to the
corporation. Any such indemnification may be made only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors or by independent legal counsel in a written opinion that
indemnification is proper because the indemnitee has met the applicable standard
of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The Company
maintains policies insuring its and its subsidiaries officers and directors
against certain liabilities for actions taken in such capacities, including
liabilities under the Securities Act of 1933, as amended (the "Securities Act"),
and certain matters for which the Company may not provide indemnification, such
as Stockholder derivative suits.
Article VI of the Bylaws of the Company provides for indemnification of the
directors and officers
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of the Company to the full extent permitted by law, as now in effect or later
amended. In addition, the Bylaws provide for indemnification against expenses
incurred by a director or officer to be paid by the Company at reasonable
intervals in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of the director or officer to
repay such amount if it shall be ultimately determined that he is not entitled
to be indemnified by the Company. The Bylaws further provide for a contractual
cause of action on the part of directors and officers of the Company for
indemnification claims that have not been paid by the Company.
In addition to the general indemnification section, Delaware law provides
further protection for directors under Section 102(b)(7) of the General
Corporation Law of Delaware. This section was enacted in June 1986 and allows a
Delaware corporation to include in its certificate of incorporation a provision
that eliminates and limits certain personal liability of a director for monetary
damages for certain breaches of the director's fiduciary duty of care, provided
that any such provision does not (in the words of the statute) do any of the
following:
"eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under section 174 of this Title [dealing with
willful or negligent violation of the statutory provision concerning dividends
and stock purchases and redemptions], or (iv) for any transaction from which the
director derived an improper personal benefit. No such provision shall eliminate
or limit the liability of a director for any act or omission occurring prior to
the date when such provision becomes effective...."
The Board of Directors is empowered to make other indemnification as
authorized by the Certificate of Incorporation, Bylaws or corporate resolution
so long as the indemnification is consistent with the Delaware General
Corporation Law.
The Company also maintains directors and officers insurance that provides
protection for directors and officers of the Company against personal liability
for wrongful acts, including protection for certain matters for which the
Company may not provide indemnification, such as stockholder derivative actions.
II-2
<PAGE>
Item 16. Exhibits And Financial Statement Schedules.
- ----------------------------------------------------
**1.1 Form of Underwriting Agreement between the Company and the
Underwriter(s) with respect to the Securities.
**1.2 Form of Agency Agreement.
**1.3 Form of Distribution Agreement.
1.4 Form of Rights Agreement dated as of August 5, 1997 between the
Company and Bank Boston, N.A., which includes, as Exhibit A
thereto, the form of Certificate of Designations specifying the
terms of the Series A Junior Participating Preferred Stock, and as
Exhibit B thereto, the form of Rights Certificate, is incorporated
by reference from Exhibit 1 to the Company's Registration
Statement on Form 8-A filed August 11, 1997.
4.1 Revised Form of Indenture between the Company and Bankers Trust
Company, as trustee, with respect to Senior Notes including
specimen of 7.55% Senior Notes is incorporated by reference from
Exhibit 4.1 to the Company's Amendment No. 2 to Registration
Statement on Form S-3 filed February 10, 1997, File No. 333-19363.
*4.2 Form of Indenture between the Company and Bankers Trust Company,
as trustee, with respect to Debt Securities.
**4.3 Form of Designating Amendment for Preferred Stock.
**4.4 Form of Deposit Agreement.
**4.5 Form of Warrant Agreement between the Company and the Warrant
Agent.
**5 Opinion of legal counsel regarding legality of securities being
registered.
*12.1 Computation of Ratio of Earnings to Fixed Charges.
*23.1 Consent of Arthur Andersen LLP.
**23.2 Consent of legal counsel (included in Exhibit 5).
*23.3 Consent of Ryder Scott Company.
*23.4 Consent of Netherland, Sewell & Associates, Inc.
24 Power of attorney (included in Part II of the Registration
Statement).
II-3
<PAGE>
*25.1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 on Form T-1 of Bankers Trust for Debt
Securities.
*99.1 Report of Ryder Scott Company.
99.2 Report of Netherland, Sewell & Associates, Inc. concerning 1995
reserves (incorporated by reference from Exhibit 99.2 to the
Registrant's Registration Statement on Form S-3 filed May 17,
1996, File No. 333-04051)
- ------------------------------
* Filed herewith.
** To be filed either by amendment or as an exhibit to a report of the Company
filed pursuant to the Securities Exchange Act of 1934, as amended and
incorporated.
Item 17. Undertakings.
- ----------------------
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in the periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
II-4
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering hereof.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities And Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act ("Act") in accordance
with the rules and regulations prescribed by the Commission under
II-5
<PAGE>
Section 305(b)(2) of the Act.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on the 6th day of May
1998.
BARRETT RESOURCES CORPORATION
By: /s/ William J. Barrett
-----------------------------------------------
William J. Barrett, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and directors
of the Registrant, by virtue of their signatures appearing below to this
Registration Statement, hereby constitute and appoint William J. Barrett or John
F. Keller, and each or either of them, with full power of substitution, as
attorneys-in-fact in their names, place and stead to execute any and all
amendments to this Registration Statement in the capacities set forth opposite
their name and hereby ratify all that said attorneys-in-fact and each of them or
his substitutes may do by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ William J. Barrett Chief Executive Officer, Chairman Of May 6, 1998
- ----------------------------- The Board, and Director (Principal
William J. Barrett Executive Officer)
/s/ A. Ralph Reed President, Chief Operating Officer, May 6, 1998
- ----------------------------- and Director
A. Ralph Reed
/s/ John F. Keller Executive Vice President, Chief May 6, 1998
- ----------------------------- Financial Officer, and Director
John F. Keller (Principal Financial and Accounting
Officer)
/s/ C. Robert Buford Director May 6, 1998
- -----------------------------
C. Robert Buford
/s/ Derrill Cody Director May 6, 1998
- -----------------------------
Derrill Cody
/s/ James M. Fitzgibbons Director May 6, 1998
- -----------------------------
James M. Fitzgibbons
/s/ William W. Grant Director May 6, 1998
- -----------------------------
William W. Grant, III
/s/ James T. Rodgers Director May 6, 1998
- -----------------------------
James T. Rodgers
/s/ Philippe S.E. Schreiber Director May 6, 1998
- -----------------------------
Philippe S.E. Schreiber
</TABLE>
<PAGE>
EXHIBIT 4.2
BARRETT RESOURCES CORPORATION
as Issuer,
AND
BANKERS TRUST COMPANY
as Trustee
INDENTURE
DATED AS OF __________, 1998
DEBT SECURITIES
<PAGE>
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
<TABLE>
<CAPTION>
<S> <C>
310 (a)..................................................... 7.10
(b)..................................................... 7.10
(c)..................................................... N.A.
311 (a)..................................................... 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312 (a)..................................................... 5.01
(b)..................................................... 5.02
(c)..................................................... 5.02
313 (a)..................................................... 5.03
(b)..................................................... 5.03
(c)..................................................... 13.03
(d)..................................................... 5.03
314 (a)(1).................................................. 4.05(a)
(a)(2).................................................. 4.05(b)
(a)(3).................................................. 4.05(a),
4.05(b) & 3.03
(a)(4).................................................. 4.06(a)
(b)..................................................... N.A.
(c)(1).................................................. 13.05
(c)(2).................................................. 13.05
(c)(3).................................................. N.A.
(d)..................................................... N.A.
(e)..................................................... 13.05
(f)..................................................... 4.07
315 (a)..................................................... 7.01(a)
(b)..................................................... 6.07 & 13.03
(c)..................................................... 7.01
(d)..................................................... 7.01
(e)..................................................... 6.08
316 (a) (last sentence)..................................... 1.01
(a)(1)(A)............................................... 6.06
(a)(1)(B)............................................... 6.06
(a)(2).................................................. 9.01(d)
(b)..................................................... 6.04
(c)..................................................... 5.04
317 (a)(1).................................................. 6.02
(a)(2).................................................. 6.02
(b)..................................................... 4.04
318 (a)..................................................... 13.07
______________
</TABLE>
N.A. means Not Applicable
NOTE: This Cross-Reference table shall not, for any purpose, be deemed part of
this Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
----
RECITALS OF THE COMPANY......................... 1
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
<TABLE>
<CAPTION>
<S> <C>
Section 1.01 Definitions................................................ 1
Section 1.02 Other Definitions.......................................... 11
Section 1.03 Incorporation by Reference of Trust Indenture Act.......... 11
Section 1.04 Rules of Construction...................................... 11
ARTICLE II
DEBT SECURITIES
Section 2.01. Forms Generally............................................ 12
Section 2.02. Form of Trustee's Certificate of Authentication............ 13
Section 2.03. Principal Amount; Issuable in Series....................... 13
Section 2.04. Execution of Debt Securities............................... 16
Section 2.05. Authentication and Delivery of Debt Securities............. 17
Section 2.06. Denomination of Debt Securities............................ 18
Section 2.07. Registration of Transfer and Exchange...................... 18
Section 2.08. Temporary Debt Securities.................................. 20
Section 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities....... 21
Section 2.10. Cancellation of Surrendered Debt Securities................ 22
Section 2.11. Provisions of the Indenture and Debt Securities for the
Sole Benefit of the Parties and the Holders................ 23
Section 2.12. Payment of Interest; Interest Rights Preserved............. 23
Section 2.13. Securities Denominated in Foreign Currencies............... 24
Section 2.14. Wire Transfers............................................. 25
Section 2.15. Securities Issuable in the Form of a Global Security....... 25
Section 2.16. Medium Term Securities..................................... 28
Section 2.17. Defaulted Interest......................................... 28
Section 2.18. Judgments.................................................. 29
Section 2.19. CUSIP Numbers.............................................. 30
</TABLE>
-i-
<PAGE>
ARTICLE III
REDEMPTION OF DEBT SECURITIES
<TABLE>
<CAPTION>
<S> <C>
Section 3.01. Applicability of Article.................................... 30
Section 3.02. Tax Redemption; Special Tax Redemption...................... 30
Section 3.03. Notice of Redemption; Selection of Debt Securities.......... 32
Section 3.04. Payment of Debt Securities Called for Redemption............ 34
Section 3.05. Mandatory and Optional Sinking Funds........................ 35
Section 3.06. Redemption of Debt Securities for Sinking Fund.............. 35
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal of, and Premium, If Any, and
Interest on, Debt Securities................................ 37
Section 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities........... 37
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee...... 38
Section 4.04. Duties of Paying Agents, etc................................ 38
Section 4.05 SEC Reports; Financial Statements........................... 39
Section 4.06 Compliance Certificate...................................... 40
Section 4.07. Payment of Additional Interest.............................. 40
Section 4.08. Further Instruments and Acts................................ 42
Section 4.09. Corporate Existence......................................... 42
Section 4.10. Maintenance of Properties................................... 42
Section 4.11. Payment of Taxes and Other Claims........................... 43
Section 4.12. Limitation on Sale/Leaseback Transactions................... 43
Section 4.13. Limitation on Liens......................................... 44
ARTICLE V
HOLDERS' LISTS AND REPORTSBY THE TRUSTEE
Section 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information........... 45
Section 5.02. Communications to Holders................................... 46
Section 5.03. Reports by Trustee.......................................... 46
Section 5.04. Record Dates for Action by Holders.......................... 47
</TABLE>
-ii-
<PAGE>
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
<TABLE>
<CAPTION>
<S> <C>
Section 6.01. Events of Default........................................... 47
Section 6.02. Collection of Indebtedness by Trustee, etc.................. 49
Section 6.03. Application of Moneys Collected by Trustee.................. 50
Section 6.04. Limitation on Suits by Holders.............................. 51
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default.............................. 52
Section 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default........... 52
Section 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances............... 53
Section 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits
under the Indenture or Against the Trustee.................. 53
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities......................... 53
Section 7.02. Certain Rights of Trustee................................... 55
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities.................................................. 56
Section 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities.. 56
Section 7.05. Moneys Received by Trustee to Be Held in Trust.............. 56
Section 7.06. Compensation and Reimbursement.............................. 56
Section 7.07. Right of Trustee to Rely on an Officers' Certificate Where
No Other Evidence Specifically Prescribed................... 57
Section 7.08. Separate Trustee; Replacement of Trustee.................... 57
Section 7.09. Successor Trustee by Merger................................. 58
Section 7.10. Eligibility; Disqualification............................... 59
Section 7.11. Preferential Collection of Claims Against Company........... 59
Section 7.12. Compliance with Tax Laws.................................... 59
ARTICLE VIII
CONCERNING THE HOLDERS
Section 8.01. Evidence of Action by Holders............................... 59
Section 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities.................................................. 60
Section 8.03. Who May Be Deemed Owner of Debt Securities.................. 60
Section 8.04. Instruments Executed by Holders Bind Future Holders......... 61
</TABLE>
-iii-
<PAGE>
ARTICLE IX
SUPPLEMENTAL INDENTURES
<TABLE>
<CAPTION>
<S> <C>
Section 9.01. Purposes for Which Supplemental Indenture May Be Entered
into Without Consent of Holders............................. 61
Section 9.02. Modification of Indenture with Consent of Holders of Debt
Securities.................................................. 64
Section 9.03. Effect of Supplemental Indentures........................... 65
Section 9.04. Debt Securities May Bear Notation of Changes by Supplemental
Indentures.................................................. 65
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 10.01. Consolidations and Mergers of the Company................... 66
Section 10.02. Rights and Duties of Successor Company...................... 66
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 11.01. Applicability of Article.................................... 67
Section 11.02. Satisfaction and Discharge of Indenture; Defeasance......... 67
Section 11.03. Conditions of Defeasance.................................... 68
Section 11.04. Application of Trust Money.................................. 69
Section 11.05. Repayment to Company........................................ 69
Section 11.06. Indemnity for U.S. Government Obligations................... 69
Section 11.07. Reinstatement............................................... 70
ARTICLE XII
SUBORDINATION OF DEBT SECURITIES
Section 12.01. Applicability of Article; Agreement To Subordinate.......... 70
Section 12.02. Liquidation, Dissolution, Bankruptcy........................ 70
Section 12.03. Default on Senior Indebtedness.............................. 70
Section 12.04. Acceleration of Payment of Debt Securities.................. 71
Section 12.05. When Distribution Must Be Paid Over......................... 71
Section 12.06. Subrogation................................................. 72
Section 12.07. Relative Rights............................................. 72
Section 12.08. Subordination May Not Be Impaired by Company................ 72
Section 12.09. Rights of Trustee and Paying Agent.......................... 72
Section 12.10. Distribution or Notice to Representative.................... 72
Section 12.11. Article XII Not to Prevent Defaults or Limit Right to
Accelerate.................................................. 73
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Section 12.12. Trust Moneys Not Subordinated.............................. 73
Section 12.13. Trustee Entitled to Rely................................... 73
Section 12.14. Trustee to Effectuate Subordination........................ 73
Section 12.15. Trustee Not Fiduciary for Holders of Senior Indebtedness... 73
Section 12.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions................................................. 74
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01. Successors and Assigns of Company Bound by Indenture....... 74
Section 13.02. Acts of Board, Committee or Officer of Successor Company
Valid...................................................... 74
Section 13.03. Required Notices or Demands................................ 74
Section 13.04. Indenture and Debt Securities to Be Construed in Accordance
with the Laws of the State of New York..................... 75
Section 13.05. Officers' Certificate and Opinion of Counsel to Be Furnished
upon Application or Demand by the Company.................. 75
Section 13.06. Payments Due on Legal Holidays............................. 76
Section 13.07. Provisions Required by TIA to Control...................... 76
Section 13.08. Computation of Interest on Debt Securities................. 76
Section 13.09. Rules by Trustee, Paying Agent and Registrar............... 76
Section 13.10. No Recourse Against Others................................. 76
Section 13.11. Severability............................................... 77
Section 13.12. Effect of Headings......................................... 77
Section 13.13. Indenture May Be Executed in Counterparts.................. 77
</TABLE>
-v-
<PAGE>
INDENTURE dated as of __________, 1998 among Barrett Resources Corporation,
a Delaware corporation (the "Company"), and Bankers Trust Company of New York, a
New York banking corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 DEFINITIONS.
-----------
"Affiliate" of any specified Person means any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
such specified Person. For purposes of this definition, control of a Person
shall mean the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise. The Trustee may request and may conclusively rely upon
an Officers' Certificate to determine whether any Person is an Affiliate of any
specified Person.
"Agent" means any Registrar or paying agent.
"Attributable Indebtedness", when used with respect to any Sale/Leaseback
Transaction, means, as at the time of determination, the present value
(discounted at a rate equivalent to the Company's then current weighted average
cost of funds for borrowed money as at the time of determination, compounded on
a semiannual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease can be extended).
<PAGE>
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 2.03
with respect to the Debt Securities of any series. 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 in such
city.
"Bankruptcy Law" means title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Bank Indebtedness" means any and all amounts payable under or in respect
of the Credit Agreement, including principal, premium (if any), interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof.
"Bearer Holder" means, with respect to any Bearer Security or Coupon, the
bearer thereof.
"Bearer Security" means any Debt Security (with or without Coupons), title
to which passes by delivery only, but does not include any Coupons.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors of the Company.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means and includes any and all shares, rights
to purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interests in (however designated) the
equity (which includes, but is not limited to, common stock, preferred stock and
partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
"Capitalized Lease Obligation" of any Person means any obligation of such
Person to pay rent or other amounts under a lease of property, real or personal,
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
"Common Equity" of any Person means and includes all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person, or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
-2-
<PAGE>
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" means, 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.
"Consolidated Net Tangible Assets" means, for the Company and its
Restricted Subsidiaries on a consolidated basis determined in accordance with
generally accepted accounting principles, the aggregate amounts of assets (less
depreciation and valuation reserves and other reserves and items deductible from
gross book value of specific asset accounts under generally accepted accounting
principles) that would be included on a balance sheet after deducting therefrom
(a) all liability items except deferred income taxes, commercial paper, short
term bank indebtedness, Funded Indebtedness, other long-term liabilities and
shareholders' equity and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles.
"Coupon" means any interest coupon appertaining to any Bearer Security.
"Coupon Security" means any Bearer Security authenticated and delivered
with one or more Coupons appertaining thereto.
"Credit Agreement" means the Amended and Restated Credit Agreement dated as
of November 12, 1997, as supplemented, amended or modified from time to time,
among the Company, the Banks (as defined therein), Texas Commerce Bank National
Association, as Agent, and The Chase Manhattan Bank, as Competitive Bid Auction
Agent.
"Currency" means Dollars or Foreign Currency.
"Currency Hedge Obligations" means, at any time as to any Person, the
obligations of such Person at such time that were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or futures contract or other similar agreement or arrangement designed to
protect against or manage such Person's or any of its Subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
"Custodian" means any receiver, trustee, assignee, liquidation or similar
official under any Bankruptcy Law.
"Debt Security" or "Debt Securities" has the meaning stated in the first
---------------
recital of this Indenture and more particularly means any debt security or debt
securities, as the case may be of any series authenticated and delivered under
this Indenture.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
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<PAGE>
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 2.03 or 2.15, with respect to Registered Debt Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
"Designated Senior Indebtedness" means (a) the Bank Indebtedness, (b) the
Indebtedness outstanding under the 7.55% Senior Notes due 2007, and (c) any
other Senior Indebtedness which, at the date of determination, has an aggregate
principal amount outstanding of, or under which, at the date of determination,
the holders thereof are committed to lend up to, at least $100 million and is
specifically designated by the Company in the instrument evidencing or governing
such Senior Indebtedness as "Designated Senior Indebtedness" for purposes of
this Indenture and has been designated as "Designated Senior Indebtedness" for
purposes of this Indenture in an Officers' Certificate received by the Trustee.
"Dollar" or "$" means such currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a Foreign
Currency, at any time for the determination thereof, the amount of Dollars
obtained by converting such Foreign Currency involved in such computation into
Dollars at the spot rate for the purchase of Dollars with the applicable Foreign
Currency as quoted by Bankers Trust Company (unless another comparable financial
institution is designated by the Company) in New York, New York at approximately
11:00 a.m. (New York time) on the date two business days prior to such
determination.
"European Currency Units" has the meaning assigned to it from time to time
by the Council of the European Communities, or its successor in the European
Union.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and the European Atomic Energy Community, or their
successors in the European Union.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor statute.
"Floating Rate Security" means a Debt Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued by the government of any country
other than the United States or a composite currency the value of which is
determined by reference to the values of the currencies of any group of
countries.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of any
obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
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"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect on the date on which the Debt
Securities of the applicable series are issued.
"Global Security" means with respect to any series of Debt Securities
issued hereunder, a Debt Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an Officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all the Outstanding Debt
Securities of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining
interest.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and any obligation, direct or indirect, contingent or otherwise, of
such Person (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation of such other Person
(whether arising by virtue of partnership arrangements, or by agreement to keep-
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (b) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
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"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Currency Hedge Obligations, Interest Rate Hedging Agreements or
Oil and Gas Hedging Contracts.
"Holder," "Holder of Debt Securities" or other similar terms means, with
respect to a Registered Security, the Registered Holder and, with respect to a
Bearer Security or a Coupon, the Bearer Holder.
"Indebtedness" of any Person at any date means, without duplication, (i)
all indebtedness of such Person for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement
obligations with respect thereto), other than standby letters of credit incurred
by such Person in the ordinary course of business, (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
except trade payables and accrued expenses incurred in the ordinary course of
business, (v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness of others secured by a Lien on any asset of such Person, whether or
not such Indebtedness is assumed by such Person, (vii) all
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Indebtedness of others guaranteed by such Person to the extent of such guarantee
and (viii) all Hedging Obligations of such Person.
"Indenture" means this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented and shall include
the form and terms of particular series of Debt Securities as contemplated
hereunder, whether or not a supplemental Indenture is entered into with respect
thereto.
"Interest" includes, when used with respect to a Bearer Security, any
additional interest payable on such Bearer Security pursuant to Section 3.02 or
4.07.
"Interest Rate Hedging Agreements" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person or any of its
Subsidiaries against fluctuations in interest rates.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including, without limitation, any production payment, advance payment or
similar arrangement with respect to minerals in place), whether or not filed,
recorded or otherwise perfected under applicable law. For the purposes of this
Indenture, the Company or any Restricted Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capitalized
Lease Obligation (other than any Capitalized Lease Obligation relating to any
building, structure, equipment or other property used or to be used in the
ordinary course of business of the Company and the Restricted Subsidiaries) or
other title retention agreement relating to such asset.
"Net Proceeds" means, with respect to any Sale/Leaseback Transaction
entered into by the Company or any Restricted Subsidiary, the aggregate net
proceeds received by the Company or such Restricted Subsidiary from such
Sale/Leaseback Transaction after payment of expenses, taxes, commissions and
similar amounts incurred in connection therewith, whether such proceeds are in
cash or in property (valued at the fair market value thereof at the time of
receipt, as determined by the Board of Directors).
"Officer" means the President, the Treasurer, any Assistant Treasurer,
Controller, Secretary, Assistant Secretary or any Vice President or Assistant
Vice President of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a
Person, one of whom must be the Person's chief executive officer, chief
financial officer or chief accounting officer.
"Oil and Gas Hedging Contracts" means any oil and gas purchase or hedging
agreement, and other agreement or arrangement, in each case, that is designed to
provide protection against oil and gas price fluctuations.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
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"Ordinary Course Lien" means:
(a) Liens for taxes, assessments or governmental charges or levies on the
property of the Company or any Restricted Subsidiary if the same shall not at
the time be delinquent or thereafter can be paid without penalty, or are being
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on the books of the
Company;
(b) Liens imposed by law, such as carriers', warehousemen's, landlords' and
mechanics' liens and other similar liens arising in the ordinary course of
business which secure obligations not more than 60 days past due or which are
being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on the books of the
Company;
(c) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other encumbrances or
charges against real property as are of a nature generally existing with respect
to properties of a similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof in the ordinary
course of business of the Company and the Restricted Subsidiaries;
(e) Liens arising under operating agreements or similar agreements in
respect of obligations which are not yet due or which are being contested in
good faith by appropriate proceedings;
(f) Liens reserved in oil, gas and/or mineral leases, production sharing
contracts and petroleum concession agreements and licenses for bonus or rental
payments and for compliance with the terms of such leases, contracts, agreements
and licenses;
(g) Liens pursuant to partnership agreements, oil, gas and/or mineral
leases, production sharing contracts, petroleum concession agreements and
licenses, farm-out agreements, division orders, contracts for the sale,
purchase, exchange, processing or transportation of oil, gas and/or other
hydrocarbons, unitization and pooling declarations and agreements, operating
agreements, development agreements, area of mutual interest agreements, and
other agreements which are customary in the oil, gas and other mineral
exploration, development and production business and in the business of
processing of gas and gas condensate production for the extraction of products
therefrom;
(h) Liens on personal property (excluding the Capital Stock of any
Restricted Subsidiary) securing Indebtedness of the Company or any Restricted
Subsidiary other than Funded Indebtedness; and
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(i) Liens imposed by law or order as a result of any proceeding before any
court or regulatory body that is being contested in good faith, and Liens which
secure a judgment or other court-ordered award or settlement as to which the
Company has not exhausted its appellate rights.
"Original Issue Discount Debt Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01.
"Outstanding", when used with respect to any series of Debt Securities,
means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under this Indenture, except:
(a) Debt Securities of that series theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(b) Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any paying agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own paying agent) for
the Holders of such Debt Securities; provided, that, if such Debt 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
(c) Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a bona
fide purchaser in whose hands such Debt Securities are valid obligations of the
Company; provided, however, that in determining whether the Holders of the
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requisite principal amount of the Outstanding Debt Securities of any series have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, Debt Securities owned by the Company or any other obligor upon the
Debt 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, only Debt Securities which
an officer of the Trustee actually knows to be so owned shall be so disregarded.
Debt 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 Debt Securities and that the
pledgee is not the Company or any other obligor upon the Debt Securities or an
Affiliate of the Company or of such other obligor. In determining whether the
Holders of the requisite principal amount of Outstanding Debt Securities have
given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of an Original Issue Discount Debt Security that
shall be deemed to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 6.01. In determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction,
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notice, consent or waiver hereunder, the principal amount of a Debt Security
denominated in one or more foreign currencies or currency units that shall be
deemed to be Outstanding for such purposes shall be the Dollar Equivalent,
determined in the manner provided as contemplated by Section 2.03 on the date of
original issuance of such Debt Security, of the principal amount (or, in the
case of any Original Issue Discount Security, the Dollar Equivalent on the date
of original issuance of such Security of the amount determined as provided in
the preceding sentence above) of such Debt Security.
"Pari Passu" as applied to the ranking of any Indebtedness of a Person in
relation to other Indebtedness of such Person, means that each such Indebtedness
either (a) is not subordinate in right of payment to any Indebtedness or (b) is
subordinate in right of payment to the same Indebtedness as is the other, and is
so subordinate to the same extent, and is not subordinate in right of payment to
each other or to any Indebtedness as to which the other is not so subordinate.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Place of Payment" means, when used with respect to the Debt Securities of
any series, the place or places where the principal of, and premium, if any, and
interest on, the Debt Securities of that series are payable as specified
pursuant to Section 2.03.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"Redemption Date," when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Registered Holder" means the Person in whose name a Registered Security is
registered in the Debt Security Register (as defined in Section 2.07(a)).
"Registered Security" means any Debt Security registered as to principal
and interest in the Debt Security Register (as defined in Section 2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"Representative" means the trustee, agent or representative (if any) for an
issue of Senior Indebtedness.
"Restricted Subsidiary" means each of the existing Subsidiaries of the
Company and any Subsidiary of the Company that is a successor corporation of any
of the existing Subsidiaries, except for BGP Inc. The status of any Subsidiary
of the Company as a Restricted Subsidiary shall continue, so long as it is a
Subsidiary of the Company.
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"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary, for a
period of more than three years, of any real or tangible personal property,
which property has been or is to be sold or transferred by the Company or such
Restricted Subsidiary to such Person in contemplation of such leasing.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Senior Indebtedness" means, as to any series of Debt Securities
subordinated pursuant to the provisions of Article XII, the Indebtedness of the
Company identified as Senior Indebtedness in the resolution of the Board of
Directors and accompanying Officers' Certificate or supplemental Indenture
setting forth the terms, including as to Subordination, of such series.
"7.55% Senior Notes due 2007" means the Company's 7.55% Senior Notes due
2007 issued under the Indenture, dated as of February 1, 1997, between the
Company and Bankers Trust Company, as Trustee.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" of any Person means any corporation of which at least a
majority of the aggregate voting power of all classes of the Common Equity is
owned by such Person directly or through one or more other Subsidiaries of such
Person, and any entity other than a corporation in which such Person, directly
or indirectly, owns at least a majority of the Common Equity of such entity.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. (S)(S)
77aaa-77bbbb), as in effect on the date of this Indenture as originally executed
and, to the extent required by law, as amended.
"Trustee" initially means Bankers Trust Company and any other Person or
Persons appointed as such from time to time pursuant to Section 7.08, and,
subject to the provisions of Article VII, includes its or their successors and
assigns. If at any time there is more than one such Person, "Trustee" as used
with respect to the Debt Securities of any series shall mean the Trustee with
respect to the Debt Securities of that series.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
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"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 fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States Federal income
tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United States
of America, obligations on which the payment of principal and interest is fully
guaranteed by the United States of America or obligations or guarantees for the
payment of which the full faith and credit of the United States of America is
pledged.
"Yield to Maturity" means the yield to maturity, calculated at the time of
issuance of a series of Debt Securities, or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
Section 1.02 OTHER DEFINITIONS.
-----------------
DEFINED
IN
TERM SECTION
---- -------
"Debt Security Register".............. 2.07
"Defaulted Interest".................. 2.17
"Designated Currency"................. 2.18
"Determination Notice"................ 3.02
"Event of Default".................... 6.01
"Registrar"........................... 2.07
"Subordinated Debt Securities"........ 12.01
"Successor Company"................... 10.01
Section 1.03 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
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this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
Section 1.04 RULES OF CONSTRUCTION. Unless the context otherwise
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requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include
the singular;
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(e) provisions apply to successive events and transactions.
(f) if the applicable series of Debt Securities are subordinated pursuant
to Article XII, unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness; and
(g) the principal amount of any noninterest bearing or other discount
security at any date shall be the principal amount thereof that would be shown
on a balance sheet of the issuer dated such date prepared in accordance with
GAAP.
ARTICLE II
DEBT SECURITIES
Section 2.01. FORMS GENERALLY. The Debt Securities and Coupons, if any, of
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each series shall be in substantially the form established without the approval
of any Holder by or pursuant to a resolution of the Board of Directors or in one
or more Indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as the Company
may deem appropriate (and, if not contained in a supplemental Indenture entered
into in accordance with Article IX, as are not prohibited by the provisions of
this Indenture) or as may be required or appropriate to comply with any law or
with any rules made pursuant thereto or with any rules of any securities
exchange on which such series of Debt Securities may be listed, or to conform to
general usage, or as may, consistently herewith, be determined by the officers
executing such Debt Securities and Coupons, as evidenced by their execution of
the Debt Securities and Coupons.
The definitive Debt Securities of each series and Coupons, if any, 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 Debt
Securities and Coupons, as evidenced by their execution of such Debt Securities
and Coupons.
Each Bearer Security and each Coupon shall bear a legend substantially to
the following effect: "Any United States Person who holds this obligation will
be subject to limitations under the United States Federal income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
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Section 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
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Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
As Trustee
By:_____________________________________
Authorized Signature
Section 2.03. PRINCIPAL AMOUNT; ISSUABLE IN SERIES. The aggregate
------------------------------------
principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, in or pursuant to a resolution
of the Board of Directors and set forth in an Officers' Certificate, or
established in one or more Indentures supplemental hereto, prior to the issuance
of Debt Securities of any series any or all of the following:
(a) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt Securities);
(b) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(c) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
(d) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be payable, or
the method by which such date will be determined, in the case of Registered
Securities, the record dates for the determination of Holders thereof to whom
such interest is payable; and the basis upon which interest will be calculated
if other than that of a 360-day year of twelve thirty-day months;
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(e) the place or places, if any, in addition to or instead of the
corporate trust office of the Trustee (in the case of Registered Securities) or
the principal London office of the Trustee (in the case of Bearer Securities),
where the principal of, and premium, if any, and interest on, Debt Securities of
the series shall be payable;
(f) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series may be
redeemed, in whole or in part, at the option of the Company or otherwise;
(g) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer Securities
are to be issued, whether Coupons will be attached thereto, whether Bearer
Securities of the series may be exchanged for Registered Securities of the
series and the circumstances under which and the places at which any such
exchanges, if permitted, may be made;
(h) if any Debt Securities of the series are to be issued as Bearer
Securities or as one or more Global Securities representing individual Bearer
Securities of the series, whether the provisions of Sections 3.02 and 4.07 or
other provisions for payment of additional interest or tax redemptions shall
apply and, if other provisions shall apply, such other provisions; whether
interest in respect of any portion of a temporary Bearer Security of the series
(delivered pursuant to Section 2.08) payable in respect of any interest payment
date prior to the exchange of such temporary Bearer Security for definitive
Bearer Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its account
and, in such event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a clearing
organization will be credited to the Persons entitled to interest payable on
such interest payment date; and the terms upon which a temporary Bearer
Security may be exchanged for one or more definitive Bearer Securities of the
series;
(i) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the price or prices at
which and the period or periods within which and the terms and conditions upon
which Debt Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligations;
(j) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for Common Stock, Preferred Stock (which
may be represented by depositary shares), other Debt Securities or warrants for
Common Stock, Preferred Stock or Indebtedness or other securities of any kind of
the Company or any other obligor and the terms and conditions upon which such
conversion or exchange shall be effected, including the initial conversion or
exchange price or rate, the conversion or exchange period and any other
provision in addition to or in lieu of those described herein;
(k) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
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(l) if the amount of principal of or any premium or interest on Debt
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
(m) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more dates
prior to such Stated Maturity, the amount which will be deemed to be such
principal amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any maturity other than the
Stated Maturity or which will be deemed to be Outstanding as of any such date
(or, in any such case, the manner in which such deemed principal amount is to be
determined); and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
Dollar Equivalent;
(n) any changes or additions to Article XI, including the addition of
additional covenants that may be subject to the covenant defeasance option
pursuant to Section 11.02(b);
(o) if other than such coin or Currency of the United States as at the
time of payment is legal tender for payment of public and private debts, the
coin or Currency, or Currencies or units of two or more Currencies, in which
payment of the principal of, and premium, if any, and interest on, Debt
Securities of the series shall be payable;
(p) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.01 or
provable in bankruptcy pursuant to Section 6.02;
(q) the terms, if any, of the transfer, mortgage, pledge or assignment
as security for the Debt Securities of the series of any properties, assets,
moneys, proceeds, securities or other collateral, including whether certain
provisions of the TIA are applicable and any corresponding changes to provisions
of this Indenture as currently in effect;
(r) any addition to or change in the Events of Default with respect to
the Debt Securities of the series and any change in the right of the Trustee or
the Holders to declare the principal of, and premium and interest on, such Debt
Securities due and payable;
(s) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Debt Securities in definitive
registered form; and the Depositary for such Global Security or Securities and
the form of any legend or legends to be borne by any such Global Security or
Securities in addition to or in lieu of the legend referred to in Section
2.15(a);
(t) any trustees, authenticating or paying agents, transfer agents or
registrars;
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(u) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in the terms
currently set forth in Article X, including conditioning any merger, conveyance,
transfer or lease permitted by Article X upon the satisfaction of an
Indebtedness coverage standard by the Company and Successor Company (as defined
in Article X);
(v) the terms, if any, of any Guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the series and any
corresponding changes to the provisions of this Indenture as currently in
effect;
(w) the subordination, if any, of the Debt Securities of the series
pursuant to Article XII and any changes or additions to Article XII;
(x) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(y) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of this Indenture).
All Debt Securities of any one series and the Coupons, if any, appertaining
thereto shall be substantially identical except as to denomination and except as
may otherwise be provided in or pursuant to such resolution of the Board of
Directors and as set forth in such Officers' Certificate or in any such
Indenture supplemental hereto.
Section 2.04. EXECUTION OF DEBT SECURITIES. The Debt Securities and the
----------------------------
Coupons, if any, shall be signed on behalf of the Company by its Chairman of the
Board, its President or a Vice President and by its Secretary, an Assistant
Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon the Debt
Securities and Coupons may be the manual or facsimile signatures of the present
or any future such authorized officers and may be imprinted or otherwise
reproduced on the Debt Securities and Coupons. The seal of the Company, if any,
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Debt Securities and Coupons.
Only such Debt Securities and Coupons as shall bear thereon a certificate
of authentication substantially in the form hereinbefore recited, signed
manually by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon
any Debt Security or Coupon executed by the Company shall be conclusive evidence
that the Debt Security or Coupon so authenticated has been duly authenticated
and delivered hereunder.
In case any officer of the Company who shall have signed any of the Debt
Securities or Coupons shall cease to be such officer before the Debt Securities
or Coupons so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Debt Securities or Coupons nevertheless may
be authenticated and delivered or disposed of as though the Person who signed
such Debt Securities or Coupons had not ceased to be such officer of the
Company; and any Debt Security or Coupon may be signed on behalf of the Company
by such
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Persons as, at the actual date of the execution of such Debt Security or Coupon,
shall be the proper officers of the Company, although at the date of such Debt
Security or Coupon or of the execution of this Indenture any such Person was not
such officer.
Section 2.05. AUTHENTICATION AND DELIVERY OF DEBT SECURITIES. At any time
----------------------------------------------
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Debt Securities, with appropriate Coupons, if any, of any
series executed by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Debt Securities and
Coupons to or upon a Company Order. In authenticating such Debt Securities and
Coupons, and accepting the additional responsibilities under this Indenture in
relation to such Debt Securities and Coupons, the Trustee shall be entitled to
receive, and (subject to Section 7.01) shall be fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of Directors,
certified by the Secretary or Assistant Secretary of the Company, authorizing
the terms of issuance of any series of Debt Securities and Coupons;
(b) an executed supplemental Indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section 13.05
which shall also state:
(i) that the form of such Debt Securities and Coupons has been
established by or pursuant to a resolution of the Board of Directors or by
a supplemental Indenture as permitted by Section 2.01 in conformity with
the provisions of this Indenture;
(ii) that the terms of such Debt Securities and Coupons have
been established by or pursuant to a resolution of the Board of Directors
or by a supplemental Indenture as permitted by Section 2.03 in conformity
with the provisions of this Indenture;
(iii) that such Debt Securities and Coupons, when authenticated
and delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms except as the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability;
(iv) that the Company has the corporate power to issue such
Debt Securities and Coupons and has duly taken all necessary corporate
action with respect to such issuance;
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(v) that the issuance of such Debt Securities and Coupons will
not contravene the charter or by-laws of the Company or result in any
material violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement known to such
counsel by which the Company is bound;
(vi) that authentication and delivery of such Debt Securities
and Coupons and the execution and delivery of any supplemental Indenture
will not violate the terms of this Indenture; and
(vii) such other matters as the Trustee may reasonably request.
Such Opinion of Counsel need express no opinion as to whether a court in
the United States would render a money judgment in a currency other than that of
the United States.
The Trustee shall have the right to decline to authenticate and deliver any
Debt Securities or Coupons under this Section 2.05 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors, trustees or vice presidents shall determine
that such action would expose the Trustee to personal liability to existing
Holders.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate Debt Securities and Coupons, if any, of any series.
Unless limited by the terms of such appointment, an authenticating agent may
authenticate Debt Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Registrar, paying
agent or agent for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any series, each
Debt Security shall be dated the date of its authentication.
Section 2.06. DENOMINATION OF DEBT SECURITIES. Unless otherwise provided
-------------------------------
in the form of Debt Security for any series, the Debt Securities of each series
shall be issuable only as Registered Securities in such denominations as shall
be specified or contemplated by Section 2.03. In the absence of any such
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 2.07. REGISTRATION OF TRANSFER AND EXCHANGE. The Company shall
-------------------------------------
keep or cause to be kept a register for each series of Registered Securities
issued hereunder (hereinafter collectively referred to as the "Debt Security
Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the transfer of Registered Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for
registration of transfer of any Registered Security at any office or agency to
be maintained by the Company in accordance with the provisions of Section 4.02,
the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a
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new Registered Security or Registered Securities of authorized denominations for
a like aggregate principal amount. In no event may Registered Securities,
including Registered Securities received in exchange for Bearer Securities, be
exchanged for Bearer Securities.
Unless and until otherwise determined by the Company by resolution of the
Board of Directors, the register of the Company for the purpose of registration,
exchange or registration of transfer of the Registered Securities shall be kept
at the corporate trust office of the Trustee and, for this purpose, the Trustee
shall be designated "Registrar".
Registered Securities of any series (other than a Global Security, except
as set forth below) may be exchanged for a like aggregate principal amount of
Registered Securities of the same series of other authorized denominations.
Subject to Section 2.15, Registered Securities to be exchanged shall be
surrendered at the office or agency to be maintained by the Company as provided
in Section 4.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor the Registered Security or
Registered Securities which the Holder making the exchange shall be entitled to
receive.
At the option of the Holder of Bearer Securities of any series, except as
otherwise specified as contemplated by Section 2.03(h) or 2.03(s) with respect
to a Global Security representing Bearer Securities, Bearer Securities of such
series may be exchanged for Registered Securities (if the Debt Securities of
such series are issuable as Registered Securities) or Bearer Securities of the
same series, of any authorized denomination or denominations, of like tenor and
aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at the office or agency of the Company maintained for such purpose,
with all unmatured Coupons and all matured Coupons in Default thereto
appertaining; provided, however, that delivery of a Bearer Security shall occur
-------- -------
only outside the United States. If such Holder is unable to produce any such
unmatured Coupon or Coupons or matured Coupon or Coupons in Default, such
exchange may be effected if such Holder's Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any paying agent harmless. If thereafter such Holder shall
surrender to any paying agent any such missing Coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
-------- -------
Section 2.12, interest represented by Coupons shall be payable only upon
presentation and surrender of those Cou pons at an office or agency located
outside the United States.
Whenever any Debt Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
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<PAGE>
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax, fee,
assessment or other governmental charge that may be imposed in relation thereto,
other than those expressly provided in this Indenture to be made at the
Company's own expense or without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Debt Securities for a period of 15 days next preceding any mailing
of notice of redemption of Debt Securities of such series or (ii) to register
the transfer of or exchange any Debt Securities selected, called or being called
for redemption; provided, however, that, if specified pursuant to Section 2.03,
-------- -------
any Bearer Securities of any series that are exchangeable for Registered
Securities and that are called for redemption pursuant to Section 3.02 may, to
the extent permitted by applicable law, be exchanged for one or more Registered
Securities of such series during the period preceding the redemption date
therefor.
Prior to the due presentation for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent or any Registrar may deem
and treat the Person in whose name a Debt Security is registered as the absolute
owner of such Debt Security for the purpose of receiving payment of principal
of, and premium, if any, and interest on, such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security is overdue, and none of
the Company, the Trustee, any paying agent or Registrar shall be affected by
notice to the contrary.
None of the Company, the Trustee, any agent of the Trustee, any paying
agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 2.08. TEMPORARY DEBT SECURITIES. Pending the preparation of
-------------------------
definitive Debt Securities of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form or, if authorized, in bearer
form with one or more Coupons or without Coupons, and with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities
and Coupons, all as may be determined by the Company with the concurrence of the
Trustee. Temporary Debt Securities and Coupons may contain such reference to
any provisions of this Indenture as may be appropriate. Every temporary Debt
Security
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shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. Except as otherwise specified as contemplated by Section
2.03(h)(iii) with respect to a series of Debt Securities issuable as Bearer
Securities or as one or more Global Securities representing individual Bearer
Securities of the series, (a) after the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company
at a Place of Payment for such series, without charge to the Holder thereof,
except as provided in Section 2.07 in connection with a transfer and except that
a Person receiving definitive Bearer Securities shall bear the cost of
insurance, postage, transportation and the like unless otherwise specified
pursuant to Section 2.03, and (b) upon surrender for cancellation of any one or
more temporary Debt Securities of any series (accompanied by any unmatured
Coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and of
like tenor; provided, however, that no definitive Bearer Security shall be
-------- -------
delivered in exchange for a temporary Registered Security; and provided,
--------
further, however, that delivery of a Global Security representing individual
- ------- -------
Bearer Securities or a Bearer Security shall occur only outside the United
States. Until so exchanged, temporary Debt Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of such series, except as otherwise specified as contemplated by
Section 2.03(h)(ii) with respect to the payment of interest on Global Securities
in temporary form.
Unless otherwise specified pursuant to Section 2.03, the Company will
execute and deliver each definitive Global Security representing individual
Bearer Securities and each Bearer Security to the Trustee at its principal
office in London or such other place outside the United States specified
pursuant to Section 2.03.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount to be
exchanged and endorsed.
Section 2.09. MUTILATED, DESTROYED, LOST OR STOLEN DEBT SECURITIES. If (a)
----------------------------------------------------
any mutilated Debt Security or any mutilated Coupon with the Coupon Security to
which it appertains (and all unmatured Coupons attached thereto) is surrendered
to the Trustee at its corporate trust office (in the case of Registered
Securities) or at its principal London office (in the case of Bearer Securities)
or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security or any Coupon, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them and any paying agent harmless, and neither
the Company nor the Trustee receives notice that such Debt Security or Coupon
has been acquired by a bona fide purchaser, then the Company shall execute and,
upon a Company Order, the Trustee shall authenticate and deliver, in exchange
for or in lieu of any such
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mutilated, destroyed, lost or stolen Debt Security or in exchange for the Coupon
Security to which such mutilated, destroyed, lost or stolen Coupon appertained,
a new Debt Security of the same series of like tenor, form, terms and principal
amount, bearing a number not contemporaneously Outstanding, and, in the case of
a Coupon Security, with such Coupons attached thereto that neither gain nor loss
in interest shall result from such exchange or substitution. Upon the issuance
of any substituted Debt Security, the Company may require the payment of a sum
sufficient to cover any tax, fee, assessment or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
In case any Debt Security or Coupon which has matured or is about to mature or
which has been called for redemption shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substituted Debt Security
or Coupon, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Debt Security or Coupon) if the applicant for
such payment shall furnish the Company and the Trustee with such security or
indemnity as either may require to save it harmless from all risk, however
remote, and, in case of destruction, loss or theft, evidence to the satisfaction
of the Company and the Trustee of the destruction, loss or theft of such Debt
Security or Coupon and of the ownership thereof; provided, however, that payment
-------- -------
of principal of, and premium, if any, and interest on, Bearer Securities or
Coupons shall, except as otherwise provided in Section 2.12, be payable only at
an office or agency located outside the United States.
Every substituted Debt Security of any series, with its Coupons, if any,
issued pursuant to the provisions of this Section 2.09 by virtue of the fact
that any Debt Security or Coupon is destroyed, lost or stolen shall constitute
an original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Debt Security or Coupon shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debt Securities of that series and
Coupons, if any, duly issued hereunder. All Debt Securities and Coupons, if
any, shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Debt Securities or Coupons, and shall
preclude any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
Section 2.10. CANCELLATION OF SURRENDERED DEBT SECURITIES. All Debt
-------------------------------------------
Securities surrendered for payment, redemption, registration of transfer or
exchange and all Coupons surrendered for payment or exchange shall, if
surrendered to the Company or any paying agent or a Registrar, be delivered to
the Trustee for cancellation by it, or if surrendered to the Trustee, shall be
canceled by it, and no Debt Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities and Coupons held by the Trustee shall
be destroyed (subject to the record retention requirements of the Exchange Act)
and certification of their destruction delivered to the Company, unless
otherwise directed. On request of the Company, the Trustee shall deliver to the
Company canceled Debt Securities and Coupons held by the Trustee. If the
Company shall acquire any of the Debt Securities or Coupons, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented thereby unless and until the same are delivered or
surrendered to the Trustee for cancellation. The Company may not issue new Debt
Securities or Coupons to replace Debt Securities or Coupons it has redeemed,
paid or delivered to the Trustee for cancellation.
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Section 2.11. PROVISIONS OF THE INDENTURE AND DEBT SECURITIES FOR THE SOLE
------------------------------------------------------------
BENEFIT OF THE PARTIES AND THE HOLDERS. Nothing in this Indenture or in the
- --------------------------------------
Debt Securities or Coupons, expressed or implied, shall give or be construed to
give to any Person, other than the parties hereto, the Holders or any Registrar
or paying agent, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all its covenants, conditions and provisions being for the sole
benefit of the parties hereto, the Holders and any Registrar and paying agents.
Section 2.12. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Interest on
----------------------------------------------
any Registered Security that is payable and is punctually paid or duly provided
for on any interest payment date shall be paid to the Person in whose name such
Registered Security is registered at the close of business on the regular record
date for such interest notwithstanding the cancellation of such Registered
Security upon any transfer or exchange subsequent to the regular record date. In
case a Coupon Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency in a
Place of Payment for such series) on any regular record date and before the
opening of business (at such office or agency) on the next succeeding interest
payment date, such Coupon Security shall be surrendered without the Coupon
relating to such interest payment date and interest will not be payable on such
interest payment date in respect of the Registered Security issued in exchange
for such Coupon Security, but will be payable only to the Holder of such Coupon
when due in accordance with the provisions of this Indenture. Payment of
interest on Registered Securities shall be made at the corporate trust office of
the Trustee (except as otherwise specified pursuant to Section 2.03), or at the
option of the Company, by check mailed to the address of the Person entitled
thereto as such address shall appear in the Debt Security Register or, if
provided pursuant to Section 2.03 and in accordance with arrangements
satisfactory to the Trustee, at the option of the Registered Holder by wire
transfer to an account designated by the Registered Holder.
(b) No interest shall be payable with respect to a Bearer Security or
Coupon unless such certification requirements as are specified pursuant to
Section 2.03(h)(iii) are satisfied with respect to such Bearer Security or
Coupon. Interest on any Coupon Security that is payable and is punctually paid
or duly provided for on any interest payment date shall be paid to the Holder of
the Coupon that has matured on such interest payment date upon surrender of such
Coupon on such interest payment date at the principal London office of the
Trustee or at such other Place of Payment outside the United States specified
pursuant to Section 2.03.
Interest on any Bearer Security (other than a Coupon Security) that is
payable and is punctually paid or duly provided for on any interest payment date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such interest payment date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 2.03.
Unless otherwise specified pursuant to Section 2.03, at the direction of
the Holder of any Bearer Security or Coupon payable in Dollars, and subject to
applicable laws and regulations, payments in respect of such Bearer Security or
Coupon will be made by check drawn on a bank in New York, New York, or, in
accordance with arrangements satisfactory to the Trustee, by wire transfer to a
Dollar account maintained by such Holder with a bank outside the United States.
If such
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<PAGE>
payment at the offices of all paying agents outside the United States becomes
illegal or is effectively precluded because of the imposition of exchange
controls or similar restrictions on the full payment or receipt of such amounts
in Dollars, then, to the extent permitted by United States tax law, the Company
will appoint an office or agent in the United States at which such payment may
be made. Unless otherwise specified pursuant to Section 2.03, at the direction
of the Holder of any Bearer Security or Coupon payable in a Foreign Currency,
payment on such Bearer Security or Coupon will be made by a check drawn on a
bank outside the United States or, in accordance with arrangements satisfactory
to the Trustee, by wire transfer to an appropriate account maintained by such
Holder outside the United States. Except as provided in this paragraph, no
payment on any Bearer Security or Coupon will be made by mail to an address in
the United States or by transfer to an account in the United States.
(c) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
Section 2.13. SECURITIES DENOMINATED IN FOREIGN CURRENCIES. (a) Except as
--------------------------------------------
otherwise specified pursuant to Section 2.03 for Bearer Securities of any
series, payment of the principal of, and premium, if any, and interest on,
Bearer Securities of such series denominated in any Currency will be made in
such Currency.
(b) Except as otherwise specified pursuant to Section 2.03 for
Registered Securities of any series, payment of the principal of, and premium,
if any, and interest on, Registered Securities of such series will be made in
Dollars.
(c) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency or in units of two or
more Foreign Currencies (including European Currency Units) for any purpose
under this Indenture, the principal amount of such Debt Securities at any time
Outstanding shall be deemed to be the Dollar Equivalent of such principal amount
as of the date of any such calculation.
In the event any Foreign Currency or currencies or units of two or more
Currencies in which any payment with respect to any series of Debt Securities
may be made ceases to be a freely convertible Currency on United States Currency
markets, for any date thereafter on which payment of principal of, or premium,
if any, or interest on, the Debt Securities of a series is due, the Company
shall select the Currency of payment for use on such date, all as provided in
the Debt Securities of such series. In such event, the Company shall, as
provided in the Debt Securities of such series, notify the Trustee of the
Currency which it has selected to constitute the funds necessary to meet the
Company's obligations on such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Company solely in the Currency so selected.
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Section 2.14. WIRE TRANSFERS. Notwithstanding any other provision to the
--------------
contrary in this Indenture, the Company may make any payment of monies required
to be deposited with the Trustee on account of principal of, or premium, if any,
or interest on, the Debt Securities (whether pursuant to optional or mandatory
redemption payments, interest payments or otherwise) by wire transfer in
immediately available funds to an account designated by the Trustee on or before
the date such moneys are to be paid to the Holders of the Debt Securities in
accordance with the terms hereof.
Section 2.15. SECURITIES ISSUABLE IN THE FORM OF A GLOBAL SECURITY. (a) If
----------------------------------------------------
the Company shall establish pursuant to Sections 2.01 and 2.03 that the Debt
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee or its agent shall, in accordance with Section 2.05, authenticate and
deliver, such Global Security or Securities, which shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the
Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
an Officer's Certificate, shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee, shall be delivered by the
Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and shall bear a legend substantially to the following effect:
'UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW YORK, TO
THE COMPANY 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 IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF', or such other legend as may then
be required by the Depositary for such Global Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
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(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole discretion
determine that the Debt Securities of any series or portion thereof issued
or issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. In such event the
Company will execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of individual Debt Securities of such
series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Debt Securities of such series of like
tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such series or portion thereof in exchange for
such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.01 and
2.03 with respect to Debt Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Debt
Securities of such series of like tenor and terms in definitive form on
such terms as are acceptable to the Company, the Trustee and such
Depositary. Thereupon the Company shall execute, and the Trustee or its
agent upon receipt of a Company Order for the authentication and delivery
of definitive Debt Securities of such series shall authenticate and
deliver, without service charge, to each Person specified by such
Depositary a new Debt Security or Securities of the same series of like
tenor and terms and of any authorized denomination as requested by such
Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and to such
Depositary a new Global Security of like tenor and terms and in an
authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate
principal amount of Debt Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. In case a Coupon
Security of any series is surrendered in exchange for a Registered Security
of such series after the close of business (at an office or agency in a
Place of Payment for such series) on any special record date and before the
opening of business (at such office or agency) on the related proposed date
of payment of Defaulted Interest, such Coupon Security shall be surrendered
without the Coupon relating to such proposed date of payment and Defaulted
Interest will not be payable on such
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proposed date of payment in respect of the Registered Security issued in
exchange for such Coupon Security, but will be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture. Upon the exchange of the entire principal amount of a Global
Security for individual Debt Securities, such Global Security shall be
canceled by the Trustee or its agent. Except as provided in the preceding
paragraph, Registered Securities issued in exchange for a Global Security
pursuant to this Section 2.15 shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Registrar. The Trustee or the
Registrar shall deliver such Registered Securities to the Persons in whose
names such Registered Securities are so registered.
(v) Payments in respect of the principal of and interest on
any Debt Securities registered in the name of the Depositary or its nominee
will be payable to the Depositary or such nominee in its capacity as the
registered owner of such Global Security. The Company and the Trustee may
treat the Person in whose name the Debt Securities, including the Global
Security, are registered as the owner thereof for the purpose of receiving
such payments and for any and all other purposes whatsoever. None of the
Company, the Trustee, any Registrar, the paying agent or any agent of the
Company or the Trustee will have any responsibility or liability for any
aspect of the records relating to or payments made on account of the
beneficial ownership interests of the Global Security by the Depositary or
its nominee or any of the Depositary's direct or indirect participants, or
for maintaining, supervising or reviewing any records of the Depositary,
its nominee or any of its direct or indirect participants relating to the
beneficial ownership interests of the Global Security, the payments to the
beneficial owners of the Global Security of amounts paid to the Depositary
or its nominee, or any other matter relating to the actions and practices
of the Depositary, its nominee or any of its direct or indirect
participants. None of the Company, the Trustee or any such agent will be
liable for any delay by the Depositary, its nominee, or any of its direct
or indirect participants in identifying the beneficial owners of the Debt
Securities, and the Company and the Trustee may conclusively rely on, and
will be protected in relying on, instructions from the Depositary or its
nominee for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Debt Securities to
be issued).
The Trustee shall deliver individual Bearer Securities issued in exchange
for a Global Security pursuant to this Section 2.15 to the Persons and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee; provided, however, that individual Bearer Securities shall
-------- -------
be delivered in exchange for a Global Security only in accordance with the
procedures as may be specified pursuant to Section 2.03.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to debt Securities in effect at the time of
such exchange.
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Section 2.16. MEDIUM TERM SECURITIES. Notwithstanding any contrary
----------------------
provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental Indenture, Opinion of Counsel or written order or any other
document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or
prior to the time of authentication of each Debt Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such
series to be issued; provided, that any subsequent request by the Company to the
--------
Trustee to authenticate Debt Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
authentication of an original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the telephonic
or written order of Persons designated in such written order (any such
telephonic instructions to be promptly confirmed in writing by such Person) and
that such Persons are authorized to determine, consistent with the Officers'
Certificate, supplemental Indenture or resolution of the Board of Directors
relating to such written order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental
Indenture or such resolution.
Section 2.17. DEFAULTED INTEREST. Any interest on any Debt Security of a
------------------
particular series which is payable, but is not punctually paid or duly provided
for, on the dates and in the manner provided in the Debt Securities of such
series and in this Indenture (herein called "Defaulted Interest") shall, if such
Debt Security is a Registered Security, forthwith cease to be payable to the
Registered Holder thereof on the relevant record date by virtue of having been
such Registered Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series are
registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Registered Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the
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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 pre-paid, to each Holder thereof at its
address as it appears in the Security Register, not less than 10 days prior
to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Registered Securities of such series are registered at the close of
business on such special record date. In case a Coupon Security of any such
series is surrendered in exchange for a Registered Security of such series
after the close of business (at an office or agency in a Place of Payment
for such series) on any special record date and before the opening of
business (at such office or agency) on the related proposed date of payment
of Defaulted Interest, such Coupon Security shall be surrendered without
the Coupon relating to such proposed date of payment and Defaulted Interest
will not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Coupon Security, but will
be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted Interest on the
Registered Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(b) Any Defaulted Interest payable in respect of Bearer Securities of any
series shall be payable pursuant to such procedures as may be satisfactory to
the Trustee in such manner that there is no discrimination between the Holders
of Registered Securities (if any) and Bearer Securities of such series, and
notice of the payment date therefor shall be given by the Trustee, in the name
and at the expense of the Company, in the manner provided in Section 13.03 not
more than 25 days and not less than 20 days prior to the date of the proposed
payment.
Section 2.18. JUDGMENTS. The Company may provide pursuant to Section 2.03
---------
for Debt Securities of any series that the obligation, if any, of the Company
to pay the principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in the Designated
Currency; the obligation of the Company to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost of exchange) on the business day in
the country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the
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day on which such Holder receives such payment; if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and any obligation of the Company
not discharged by such payment shall be due as a separate and independent
obligation and, until discharged as provided herein, shall continue in full
force and effect.
Section 2.19. 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
- --------
accuracy of such numbers either as printed on the Securities or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION OF DEBT SECURITIES
-----------------------------
Section 3.01. APPLICABILITY OF ARTICLE. The provisions of this Article
------------------------
shall be applicable to the Debt Securities of any series which are redeemable
before their Stated Maturity except as otherwise specified as contemplated by
Section 2.03 for Debt Securities of such series.
Section 3.02. TAX REDEMPTION; SPECIAL TAX REDEMPTION. (a) Unless otherwise
--------------------------------------
specified pursuant to Section 2.03, Bearer Securities of any series may be
redeemed at the option of the Company in whole, but not in part, at any time, on
giving not less than 30 or more than 60 days' notice in accordance with Section
3.03 (which notice shall be irrevocable), at the redemption price thereof
(calculated without premium), if the Company has or will become obligated to pay
additional interest on such Bearer Securities pursuant to Section 4.07 as a
result of any change in, or amendment to, the laws (or any regulations or
rulings promulgated thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or any change in the
application or official interpretation of such laws, regulations or rulings,
which change or amendment becomes effective on or after the date on which any
Person (including any Person acting as underwriter, broker or dealer) agrees to
purchase any of such Bearer Securities pursuant to their original issuance, and
such obligation cannot be avoided by the Company taking reasonable measures
available to it; provided, that no such notice of redemption shall be given
--------
earlier than 90 days prior to the earliest date on which the Company would be
obligated to pay such additional interest were a payment in respect of the
Bearer Securities of that series then due. Prior to the publication of any
notice of redemption pursuant to this Section 3.02(a), the Company shall deliver
to the Trustee an Officers' Certificate stating that the Company is entitled to
effect such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Company so to redeem have occurred and
an Opinion of Counsel to the effect that the Company has or will become
obligated to pay such additional interest as a result of such change or
amendment.
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(b) Unless otherwise specified pursuant to Section 2.03, if the
Company shall determine that any payment made outside the United States by the
Company or any of its paying agents in respect of any Bearer Security or Coupon
would, under any present or future laws or regulations of the United States, be
subject to any certification, documentation, information or other reporting
requirement of any kind, the effect of which requirement is the disclosure to
the Company, any paying agent or any governmental authority of the nationality,
residence or identity of a beneficial owner of such Bearer Security or Coupon
that is a United States Alien (other than such a requirement that would not be
applicable to a payment made by the Company or any one of its paying agents
directly to the beneficial owner or to a custodian, nominee or other agent of
the beneficial owner, or that can be satisfied by such custodian, nominee or
other agent certifying to the effect that the beneficial owner is a United
States Alien; provided, that, in any case referred to in clause (i)(B) or (ii),
--------
payment by the custodian, nominee or agent to the beneficial owner is not
otherwise subject to any such requirement), then the Company shall elect either
to redeem such Bearer Security or Coupon in whole, but not in part, at the
redemption price thereof (calculated without premium) or if the conditions of
the next succeeding paragraph are satisfied, to pay the additional interest
specified in such paragraph. The Company shall make such determination as soon
as practicable and publish prompt notice thereof (the "Determination Notice"),
stating the effective date of such certification, documentation, information or
other reporting requirement, whether the Company elects to redeem the Bearer
Security or Coupon or to pay the additional interest specified in the next
succeeding paragraph and (if applicable) the last date by which the redemption
of the Bearer Security or Coupon must take place, as provided in the next
succeeding sentence. If any Bearer Security or Coupon is to be redeemed
pursuant to this paragraph, the redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Company shall specify by notice given to the Trustee at least 60 days before the
redemption date. Notice of such redemption shall be given by the Company to the
Holders of the Bearer Security or Coupon not more than 60 days or less than 30
days prior to the redemption date. Notwithstanding the foregoing, the Company
shall not so redeem the Bearer Security or Coupon if the Company shall
subsequently determine, not less than 30 days prior to the redemption date, that
subsequent payments on the Bearer Security or Coupon would not be subject to any
such certification, documentation, information or other reporting requirement,
in which case the Company shall publish prompt notice of such subsequent
determination, and any earlier redemption notice given pursuant to this
paragraph shall be revoked and of no further effect. Prior to the publication
of any Determination Notice pursuant to this paragraph, the Company shall
deliver to the Trustee an Officers' Certificate stating that the Company is
entitled to make such determination and setting forth a statement of facts
showing that the conditions precedent to the obligation of the Company to redeem
the Bearer Security or Coupon or to pay the additional interest specified in the
next succeeding paragraph have occurred and an Opinion of Counsel to the effect
that such conditions have occurred.
If and so long as the certification, documentation, information or other
reporting requirement referred to in the preceding paragraph would be fully
satisfied by payment of a backup withholding tax or similar charge, the Company
may elect to pay as additional interest such amounts as may be necessary so that
every net payment made outside the United States following the effective date of
such requirement by the Company or any of its paying agents in respect of any
Bearer Security or Coupon of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any paying agent or any
governmental authority), after deduction or withholding for or on account of
such
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backup withholding tax or similar charge that (x) would not be applicable
in the circumstances referred to in the parenthetical clause of the first
sentence of the preceding paragraph or (y) is imposed as a result of
presentation of any such Bearer Security or Coupon for payment more than 15 days
after the date on which such payment became due and payable or on which payment
thereof was duly provided for, whichever occurred later), will not be less than
the amount provided in any such Bearer Security or Coupon to be then due and
payable. If the Company elects to pay additional interest pursuant to this
paragraph, the Company shall have the right to redeem the Bearer Security or
Coupon at any time in whole, but not in part, at the redemption price thereof
(calculated without premium), subject to the provisions of the last three
sentences of the immediately preceding paragraph. If the Company elects to pay
additional interest pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
Company shall redeem the Bearer Security or Coupon in whole, but not in part, at
the redemption price thereof (calculated without premium), subject to the
provisions of the last three sentences of the immediately preceding paragraph.
Any redemption payments made by the Company pursuant to the two immediately
preceding sentences shall be subject to the continuing obligation of the Company
to pay additional interest pursuant to this paragraph. If the Company elects
to, or is required to, redeem the Bearer Security or Coupon pursuant to this
paragraph, it shall publish prompt notice thereof. If the Bearer Security or
Coupon is to be redeemed pursuant to this paragraph, the redemption shall take
place on such date, not later than one year after publication of the notice of
redemption, as the Company shall specify by notice to the Trustee at least 60
days prior to the redemption date.
Section 3.03. NOTICE OF REDEMPTION; SELECTION OF DEBT SECURITIES. In case
--------------------------------------------------
the Company shall desire to exercise the right to redeem all or, as the case may
be, any part of the Debt Securities of any series in accordance with their
terms, a resolution of the Board of Directors of the Company or a supplemental
Indenture, the Company shall fix a date for redemption and shall give notice of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the Holders of Debt Securities of such series so to be
redeemed as a whole or in part, in the manner provided in Section 13.03. The
notice if given in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives such notice. In any
case, failure to give such notice or any defect in the notice to the Holder of
any Debt Security of a series designated for redemption as a whole or in part
shall not affect the validity of the proceedings for the redemption of any other
Debt Security of such series.
Each such notice of redemption shall specify the date fixed for redemption,
the redemption price at which Debt Securities of such series are to be redeemed,
the Place or Places of Payment that payment will be made upon presentation and
surrender of such Debt Securities, that any interest accrued to the date fixed
for redemption will be paid as specified in said notice, that the redemption is
for a sinking fund payment (if applicable), that, unless otherwise specified in
such notice, Coupon Securities of any series, if any, surrendered for redemption
must be accompanied by all Coupons maturing subsequent to the date fixed for
redemption, failing which the amount of any such missing Coupon or Coupons will
be deducted from the redemption price, if the Bearer Securities of any series
are to be redeemed and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on the applicable redemption date pursuant
to Section 2.15(c) or otherwise, the last date on which such exchanges may be
made, that, if the Company defaults in making such redemption payment or if the
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Debt Securities of that series are subordinated pursuant to the terms of Article
XII, the paying agent is prohibited from making such payment pursuant to the
terms of this Indenture, that on and after said date any interest thereon or on
the portions thereof to be redeemed will cease to accrue, that in the case of
Original Issue Discount Securities original issue discount accrued after the
date fixed for redemption will cease to accrue, the terms of the Debt Securities
of that series pursuant to which the Debt Securities of that series are being
redeemed and that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Debt
Securities of that series. If less than all the Debt Securities of a series are
to be redeemed the notice of redemption shall specify the CUSIP numbers of the
Debt Securities of that series to be redeemed. In case any Debt Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Debt Security, a
new Debt Security or Debt Securities of that series in principal amount equal to
the unredeemed portion thereof, and in the case of a Bearer Security with
appropriate Coupons, if any, will be issued.
At least 45 days but not more than 60 days before the redemption date
unless the Trustee consents to a shorter period, the Company shall give notice
to the Trustee of the redemption date, the principal amount of Debt Securities
to be redeemed and the series and terms of the Debt Securities pursuant to which
such redemption will occur. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein. If fewer than all the Debt
Securities of a series are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the Trustee, which
record date shall be not less than 15 days after the date of notice to the
Trustee.
On or prior to the redemption date for any Registered Securities, 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) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price of such Registered Securities or any portions thereof that are to be
redeemed on that date. In the case of any redemption pertaining to Bearer
Securities or Coupon Securities, the Company shall, no later than the business
day prior to such redemption date, deposit with the Trustee or with a paying
agent (other than the Company) an amount of money in the Currency in which such
Debt Securities are denominated (except as provided pursuant to Section 2.03)
sufficient to pay the redemption price of such Bearer or Coupon Securities or
any portion thereof that are to be redeemed on the redemption date.
If less than all the Debt Securities of like tenor and terms of a series
are to be redeemed (other than pursuant to mandatory sinking fund redemptions)
the Trustee shall select, on a pro rata basis, by lot or by such other method as
in its sole discretion it shall deem appropriate and fair, the Debt Securities
of that series or portions thereof (in multiples of $1,000) to be redeemed. In
any case where more than one Registered Security of such series is registered in
the same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Registered Security of
such series. The Trustee shall promptly notify the Company in writing of the
Debt Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
If any Debt Security called for redemption shall not be so paid upon surrender
thereof on such redemption date, the principal,
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premium, if any, and interest shall bear interest until paid from the redemption
date at the rate borne by the Debt Securities of that series. If less than all
the Debt Securities of unlike tenor and terms of a series are to be redeemed,
the particular Debt Securities to be redeemed shall be selected by the Company.
Provisions of this Indenture that apply to Debt Securities called for redemption
also apply to portions of Debt Securities called for redemption.
Section 3.04. PAYMENT OF DEBT SECURITIES CALLED FOR REDEMPTION. If notice
------------------------------------------------
of redemption has been given as provided in Section 3.03, the Debt Securities or
portions of Debt Securities of the series with respect to which such notice has
been given shall become due and payable on the date and at the Place or Places
of Payment stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue, any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue and any Coupons for such interest appertaining to any Coupon
Securities to be redeemed, except to the extent described below, shall be void.
On presentation and surrender of such Debt Securities at the Place or Places of
Payment in said notice specified, the said Debt Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with any interest accrued thereon to the date fixed
for redemption.
If any Coupon Security surrendered for redemption shall not be accompanied
by all Coupons appertaining thereto maturing on or after the applicable
redemption date, the redemption price for such Coupon Security may be reduced by
an amount equal to the face amount of all such missing Coupons. If thereafter
the Holder of such Coupon shall surrender to any paying agent outside the United
States any such missing Coupon in respect of which a deduction shall have been
made from the redemption price, such Holder shall be entitled to receive the
amount so deducted. The surrender of such missing Coupon or Coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any paying
agent harmless.
Any Debt Security that is to be redeemed only in part shall be surrendered
at the corporate trust office or such other office or agency of the Company as
is specified pursuant to Section 2.03 (in the case of Registered Securities) and
at the principal London office of the Trustee or such other office or agency of
the Company outside the United States as is specified pursuant to Section 2.03
(in the case of Bearer Securities) with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Registrar 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 Debt Security without service charge, a new Debt Security or Debt
Securities of the same series, of like tenor and form, 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 Debt Security
so surrendered, and, in the case of a Coupon Security, with appropriate Coupons
attached; except that if a Global Security is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the Depositary for
such Global Security, without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed
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<PAGE>
portion of the principal of the Global Security so surrendered. In the case of a
Debt Security providing appropriate space for such notation, at the option of
the Holder thereof, the Trustee, in lieu of delivering a new Debt Security or
Debt Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
Section 3.05. MANDATORY AND OPTIONAL SINKING FUNDS. The minimum amount of
------------------------------------
any sinking fund payment provided for by the terms of Debt Securities of any
series, resolution of the Board of Directors or a supplemental Indenture 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 Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Debt Securities of that series (together with
the unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company or (b) receive credit for the principal amount
of Debt Securities of that series which have been redeemed either at the
election of the Company pursuant to the terms of such Debt Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities, resolution or supplemental Indenture; provided,
--------
that such Debt Securities have not been previously so credited. Such Debt
Securities shall be received and credited for such purpose by the Trustee at the
redemption price specified in such Debt Securities, resolution or supplemental
Indenture for redemption through operation of the sinking fund and the amount of
such mandatory sinking fund payment shall be reduced accordingly.
3.06. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND. Not less
----------------------------------------------
than 60 days prior to each sinking fund payment date for any series of Debt
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, any resolution or supplemental Indenture,
the portion thereof, if any, which is to be satisfied by payment of cash in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Debt Securities of that series pursuant
to this Section 3.06 (which Debt Securities, if not previously redeemed, will
accompany such certificate) and whether the Company intends to exercise its
right to make any permitted optional sinking fund payment with respect to such
series. Such certificate shall also state that no Event of Default has occurred
and is continuing with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company to deliver such
certificate (or to deliver the Debt Securities and Coupons, if any, specified in
this paragraph) shall not constitute a Default, but such failure shall require
that the sinking fund payment due on the next succeeding sinking fund payment
date for that series shall be paid entirely in cash and shall be sufficient to
redeem the principal amount of such Debt Securities subject to a mandatory
sinking fund payment without the option to deliver or credit Debt Securities as
provided in this Section 3.06 and without the right to make any optional sinking
fund payment, if any, with respect to such series.
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<PAGE>
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the Redemption Price specified in such Debt
Securities, resolution or supplemental Indenture for operation of the sinking
fund together with any accrued interest to the date fixed for redemption. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Debt Securities shall be added to the next cash sinking fund payment received
by the Trustee for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section 3.06. Any and all sinking
fund moneys with respect to the Debt Securities of any particular series held by
the Trustee on the last sinking fund payment date with respect to Debt
Securities of such series and not held for the payment or redemption of
particular Debt Securities shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose, to the payment
of the principal of the Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.03 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.04.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own paying
agent, the Company shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) equal to any interest accrued to the date
fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.06.
The Trustee shall not redeem any Debt Securities of a series with sinking
fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Debt Securities, except that if the notice of
redemption of any such Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such Default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such Default or
Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Event of Default or Default shall have been
- -------- -------
cured or waived as provided herein, such moneys shall thereafter be applied on
the next sinking fund payment date for such Debt Securities on which such moneys
may be applied pursuant to the provisions of this Section 3.06.
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ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
-----------------------------------
Section 4.01. PAYMENT OF PRINCIPAL OF, AND PREMIUM, IF ANY, AND INTEREST
----------------------------------------------------------
ON, DEBT SECURITIES. The Company, for the benefit of each series of Debt
- -------------------
Securities, will duly and punctually pay or cause to be paid the principal of,
and premium, if any, and interest on, each of the Debt Securities and pay any
Coupons at the place, at the respective times and in the manner provided herein,
in the Debt Securities and in the Coupons. Each installment of interest on the
Debt Securities may at the Company's option be paid by mailing checks for such
interest payable to the Person entitled thereto pursuant to Section 2.07(a) to
the address of such Person as it appears on the Debt Security Register. Any
interest due on Coupon Securities on or before the Stated Maturity of the
related Debt Security, other than additional interest, if any, payable as
provided in Section 4.06 in respect of principal of, or premium, if any, on such
a Debt Security, shall be payable only upon presentation and surrender of the
several Coupons for such interest installments as are evidenced thereby as they
severally mature.
Principal, premium and interest of Debt Securities of any series shall be
considered paid on the date due if on such date the Trustee or any paying agent
holds in accordance with this Indenture money sufficient to pay in the Currency
in which the Debt Securities of such series are denominated (except as provided
pursuant to Section 2.03) all principal, premium and interest then due and, in
the case of Debt Securities subordinated pursuant to the terms of Article XII,
the Trustee or such paying agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of this
Indenture.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section 4.02. MAINTENANCE OF OFFICES OR AGENCIES FOR REGISTRATION OF
------------------------------------------------------
TRANSFER, EXCHANGE AND PAYMENT OF DEBT SECURITIES. The Company will maintain in
- -------------------------------------------------
each Place of Payment for any series of Debt Securities and Coupons, if any, an
office or agency where Debt Securities and Coupons of such series (but, except
as otherwise provided in Section 2.12, unless such Place of Payment is located
outside the United States, not Bearer Securities or Coupons) may be presented or
surrendered for payment, where Debt Securities of such series may be surrendered
for transfer or exchange and where notices and demands to or upon the Company in
respect of the Debt Securities and Coupons of such series and this Indenture may
be served. So long as any Bearer Securities of any series remain outstanding,
the Company will maintain for such purposes one or more offices or agencies
outside the United States in such city or cities specified pursuant to Section
2.03 and, if any Bearer Securities are listed on a securities exchange that
requires an office or agency for the payment of principal of, and premium, if
any, or interest on, such Bearer Securities in a location other than the
location of an office or agency specified pursuant to Section 2.03, the Company
will maintain for such purposes an office or agency in such location so long as
any Bearer Securities are listed on such securities exchange and such exchange
so requires. 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
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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
(in the case of Registered Securities) and at the principal London office of the
Trustee (in the case of Bearer Securities), and the Company hereby appoints the
Trustee as its agent to receive all presentations, surrenders, notices and
demands.
The Company may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner
- -------- -------
relieve the Company of its obligations described in the preceding paragraph.
The Company will give prompt written notice to the Trustee of any such
additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 4.03. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE. The
------------------------------------------------------
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there
shall at all times be a Trustee hereunder with respect to each series of Debt
Securities.
Section 4.04. DUTIES OF PAYING AGENTS, ETC. The Company shall cause each
----------------------------
paying agent, if any, other than the Trustee, to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series and the payment of any related Coupons (whether
such sums have been paid to it by the Company or by any other obligor on
the Debt Securities or Coupons of such series) in trust for the benefit of
the Holders of the Debt Securities and Coupons of such series;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities or Coupons of such
series) to make any payment of the principal of, and premium, if any, or
interest on, the Debt Securities of such series or any payment on any
related Coupons when the same shall be due and payable; and
(iii) that it will at any time during the continuance of an
Event of Default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, and premium, if any, or interest on,
the Debt Securities and Coupons, if any, of any series, set aside, segregate and
hold in trust for the benefit of the Holders of the Debt Securities and Coupons
of such series a sum sufficient to pay such principal, premium, if any, or
interest so becoming due. The Company will promptly notify the Trustee of any
failure by the Company to take such action or the failure by any other obligor
on such Debt Securities or Coupons to make any payment of the principal of, and
premium, if any, or interest on, such Debt Securities or Coupons when the same
shall be due and payable.
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<PAGE>
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent, as required by
this Section 4.04, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such paying agent.
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities and Coupons, it will, prior to each due
date of the principal of, and premium, if any, or interest on, any Debt
Securities of such series, deposit with any such paying agent a sum sufficient
to pay the principal, premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled thereto, and (unless any such
paying agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
the provisions of Section 11.05.
Section 4.05 SEC REPORTS; FINANCIAL STATEMENTS.
---------------------------------
(a) The Company shall, so long as any of the Debt Securities are
outstanding, file with the Trustee, within 15 days after it files the same with
the SEC, copies of the annual reports and the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) that the Company is required to file with the
SEC pursuant to Section 13 or 15 (d) of the Exchange Act. If the Company is not
subject to the requirements of such Section 13 or 15(d), the Company shall file
with the Trustee, within 15 days after it would have been required to file the
same with the SEC, financial statements, including any notes thereto (and with
respect to annual reports, an auditors' report by a firm of established national
reputation), and a "Management's Discussion and Analysis of Financial Condition
and Results of Operations," both comparable to that which the Company would have
been required to include in such annual reports, information, documents or other
reports if the Company had been subject to the requirements of such Section 13
or 15 (d). The Company shall also comply with the provisions of TIA (S) 314
(a).
(b) If the Company is required to furnish annual or quarterly reports to
its stockholders pursuant to the Exchange Act, the Company shall, so long as any
of the Debt Securities are outstanding, cause any annual report furnished to its
stockholders generally and any quarterly or other financial reports furnished by
it to its stockholders generally to be filed with the Trustee and mailed to the
Holders in the manner and to the extent provided in Section 5.03. If the
Company is not required to furnish annual or quarterly reports to its
stockholders pursuant to the Exchange Act, the Company shall cause its financial
statements referred to in Section 4.05 (a), including any notes thereto (and
with respect to annual reports, an auditors' report by a firm of established
national reputation), and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations" to be so mailed to the Holders within 10
days after the end of each of the Company's fiscal years and within 60 days
after the end of each of the Company's first three fiscal quarters.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Trustee may
be required to deliver to Holders under this Section.
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<PAGE>
Section 4.06 COMPLIANCE CERTIFICATE.
----------------------
(a) The Company shall, so long as any of the Debt Securities are
outstanding, deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers of the Company
with a view to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as to each
such Officer signing such certificate, that to the best of his knowledge the
Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof, without regard
to any grace period or requirement of notice required by this Indenture (or, if
a Default or Event of Default shall have occurred, describing all such Defaults
or Events of Default of which such Officer may have knowledge and what action
the Company, is taking or proposes to take with respect thereto) and that to the
best of his knowledge no event has occurred and remains in existence by reason
of which payments on account of the principal of, or premium, if any, or
interest, if any, on the Debt Securities are prohibited or, if such event has
occurred, a description of the event and what action the Company is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.05 shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Articles 4 or 5 of this Indenture (to the extent such provisions relate to
accounting matters) or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Debt Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company's
becoming aware of any Default or Event of Default under this Indenture, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
Section 4.07. PAYMENT OF ADDITIONAL INTEREST. Unless otherwise provided
------------------------------
pursuant to Section 2.03, the provisions of this Section 4.07 shall be
applicable to Bearer Securities of any series.
The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest to the Holder of any Bearer Security or Coupon
that is a United States Alien such amounts as may be necessary so that every net
payment on such Bearer Security or Coupon, after deduction or withholding for or
on account of any present or future tax, assessment or other governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be less
than the amount provided in such Bearer Security or Coupon to be then due and
payable. However, the Company will not be required to make any such payment of
additional interest for or on account of:
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<PAGE>
(a) any tax, fee, assessment or other governmental charge that would
not have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor or beneficiary
of, or a Person holding a power over, such Holder, if such Holder is an estate
or a trust, or a member or shareholder of such Holder, if such Holder is a
partnership or corporation) and the United States, including such Holder (or
such fiduciary, settlor, beneficiary, Person holding a power, member or
shareholder) being or having been a citizen or resident thereof or being or
having been engaged in trade or business or present therein or having or having
had a permanent establishment therein or (ii) such Holder's past or present
status for United States Federal income tax purposes as a personal holding
company, foreign personal holding company or private foundation or other tax-
exempt organization with respect to the United States or as a corporation that
accumulates earnings to avoid United States Federal income tax;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(c) any tax, fee, assessment or other governmental charge that would
not have been imposed but for the presentation by the Holder of a Bearer
Security or Coupon for payment more than 15 days after the date on which such
payment became due and payable or on which payment thereof was duly provided
for, whichever occurs later;
(d) any tax, fee, assessment or other governmental charge that is
payable otherwise than by deduction or withholding from a payment on a Bearer
Security or Coupon;
(e) any tax, fee, assessment or other governmental charge that would
not have been imposed but for a failure to comply with applicable certification,
documentation, information or other reporting requirement concerning the
nationality, residence, identity or connection with the United States of the
Holder or beneficial owner of a Bearer Security or Coupon if, without regard to
any tax treaty, such compliance is required by statute or regulation of the
United States as a precondition to relief or exemption from such tax, assessment
or other governmental charge; or
(f) any tax, fee, assessment or other governmental charge imposed on a
Holder that actually or constructively owns ten percent or more of the combined
voting power of all classes of stock of the Company or that is a controlled
foreign corporation related to the Company through stock ownership;
nor shall additional interest be paid with respect to a payment on a Bearer
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent a beneficiary or settlor
with respect to such fiduciary or a member of such partnership or a beneficial
owner would not have been entitled to the additional interest had such
beneficiary, settlor, member or beneficial owner been the Holder of such Bearer
Security or Coupon.
Whenever in this Indenture there is mentioned, in any context, the payment
of the principal of, or premium, if any, or interest on, any Debt Security or
payment with respect to any Coupon of any series, such mention shall be deemed
to include mention of the payment of additional interest provided for in the
terms of such Debt Securities and this Section 4.07 to the extent that, in such
context, additional interest is, was or would be payable in respect thereof
pursuant to the provisions
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<PAGE>
of this Section 4.07 and express mention of the payment of additional interest
(if applicable) in any provisions hereof shall not be construed as excluding
additional interest in those provisions hereof where such express mention is not
made.
If the payment of additional interest becomes required in respect of the
Debt Securities or Coupons of a series, at least ten days prior to the first
interest payment date with respect to which such additional interest will be
payable (or if the Debt Securities of that series will not bear interest prior
to its Stated Maturity, the first day on which a payment of principal, and
premium, if any, is made and on which such additional interest will be payable),
and at least ten days prior to each date of payment of principal, and premium,
if any, or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and each paying agent with an Officers' Certificate that shall specify
by country the amount, if any, required to be withheld on such payments to
Holders of Debt Securities or Coupons that are United States Aliens, and the
Company will pay to the Trustee or such paying agent the additional interest, if
any, required by the terms of such Debt Securities and this Section 4.07. The
Company covenants to indemnify the Trustee and any paying agent for, and to hold
them harmless against, any and all loss, liability or expense reasonably
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 4.07.
Section 4.08. FURTHER INSTRUMENTS AND ACTS. The Company will, upon
----------------------------
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
Section 4.09. CORPORATE EXISTENCE. The Company shall do or cause to be
-------------------
done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership and other existence of each
of its Subsidiaries and all rights (charter and statutory) and franchises of the
Company and its Subsidiaries, provided that the Company shall not be required to
preserve the corporate existence of any Subsidiary of the Company or any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and the Restricted Subsidiaries and that the loss thereof would not
have a material adverse effect on the business, prospects, assets or financial
condition of the Company and its Subsidiaries taken as a whole and would not
have any material adverse effect on the payment and performance of the
obligations of the Company under the Debt Securities and this Indenture.
Section 4.10. MAINTENANCE OF PROPERTIES. The Company shall cause all
-------------------------
properties owned by the Company or any of its Subsidiaries or used or held for
use in the conduct of its business or the business of any such Subsidiary to be
maintained and kept in good condition, repair and working order (reasonable wear
and tear excepted) and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided that nothing in this Section
shall prevent the Company from discontinuing the operation or maintenance of any
of such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its
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business or the business of any such Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 4.11. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
---------------------------------
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Subsidiaries or upon the income, profits
or property of the Company or any of its Subsidiaries, and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
Lien upon the property of the Company or any of its Subsidiaries; provided that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 4.12. LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The Company
-----------------------------------------
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with any Person (other than the Company or a
Restricted Subsidiary) unless:
(a) the Company or such Restricted Subsidiary would be entitled to incur
Indebtedness, in a principal amount equal to the Attributable Indebtedness with
respect to such Sale/Leaseback Transaction, secured by a Lien on the property
subject to such Sale/Leaseback Transaction pursuant to Section 4.13 without
equally and ratably securing the Debt Securities pursuant to such Section; or
(b) within a period commencing six months prior to the consummation of such
Sale/Leaseback Transaction and ending six months after the consummation thereof,
the Company or such Restricted Subsidiary shall have expended for property used
or to be used in the ordinary course of business of the Company and the
Restricted Subsidiaries (including amounts expended for the exploration,
drilling or development thereof, and for additions, alterations, repairs and
improvements thereto) an amount equal to all or a portion of the Net Proceeds of
such Sale/Leaseback Transaction and the Company shall have elected to designate
such amount as a credit against such Sale/Leaseback Transaction (with any such
amount not being so designated to be applied as set forth in clause (c) below);
or
(c) the Company, during the 12-month period after the effective date of
such Sale/Leaseback Transaction, shall have applied to the voluntary defeasance
or retirement of Debt Securities or any Pari Passu Indebtedness an amount equal
to the greater of the Net Proceeds of the sale or transfer of the property
leased in such Sale/Leaseback Transaction and the fair value, as determined by
the Board of Directors, of such property at the time of entering into such
Sale/Leaseback Transaction (in either case adjusted to reflect the remaining
term of the lease and any amount expended by the Company as set forth in clause
(b) above), less an amount equal to the principal amount of Securities and Pari
Passu Indebtedness voluntarily defeased or retired by the Company within such
12-month period and not designated as a credit against any other Sale/Leaseback
Transaction entered into by the Company or any Restricted Subsidiary during such
period.
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<PAGE>
Section 4.13. LIMITATION ON LIENS. No provision of this Indenture or the
-------------------
Debt Securities shall in any way restrict or prevent the Company or any
Restricted Subsidiary from issuing, assuming, guaranteeing or otherwise
incurring any indebtedness; provided, however, that the Company shall not, and
shall not permit any Restricted Subsidiary to, issue, assume or guarantee any
Indebtedness for borrowed money secured by any Lien on any property or asset now
owned or hereafter acquired by the Company or such Restricted Subsidiary without
making effective provision whereby any and all Debt Securities then or
thereafter outstanding will be secured by a Lien equally and ratably with any
and all other obligations thereby secured for so long as any such obligations
shall be so secured. Notwithstanding the foregoing, the Company or any
Restricted Subsidiary may, without so securing the Securities, issue, assume or
guarantee Indebtedness secured by the following Liens.
(a) Liens existing on the date of this Indenture or provided for under the
terms of agreements existing on such date (including, without limitation, the
Lien provided for pursuant to Section 7.06);
(b) Liens on property securing (i) all or any portion of the cost of
exploration, drilling or development of such property, (ii) all or any portion
of the cost of acquiring, constructing, altering, improving or repairing any
property or assets, real or personal, or improvements used or to be used in
connection with such property or (iii) Indebtedness incurred by the Company or
any Restricted Subsidiary to provide funds for the activities set forth in
clauses (i) and (ii) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary to the
Company or to any other Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition of such property
by the Company or a Subsidiary or Liens on the property of any Person existing
at the time such Person becomes a Restricted Subsidiary of the Company or is
merged with the Company in compliance with Article V hereof and in either case
not incurred as a result of (or in connection with or in anticipation of) the
acquisition of such property or such Person becoming a Restricted Subsidiary of
the Company or being merged with the Company, provided that such Liens do not
extend to or cover any property or assets of the Company or any of its
Restricted Subsidiaries other than the property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in connection
with the construction, installation or financing of pollution control or
abatement facilities or other forms of industrial revenue bond financing or (ii)
Indebtedness issued or guaranteed by the United States or any State thereof or
any department, agency or instrumentality of either;
(f) any Lien extending, renewing or replacing (or successive extensions,
renewals or replacements of) any Lien of any type permitted under clauses (a)
through (e) above, provided that such Lien extends to or covers only the
property that is subject to the Lien being extended, renewed or replaced;
(g) any Ordinary Course Lien arising, but only so long as continuing, in
the ordinary course of business of the Company and the Restricted Subsidiaries;
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<PAGE>
(h) any Lien resulting from the deposit of moneys or evidences of
Indebtedness in trust for the purpose of defeasing Indebtedness of the Company
or any Subsidiary; or
(i) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (h) above) securing Indebtedness of the Company or any
Restricted Subsidiary in an aggregate principal amount which, together with the
aggregate amount of Attributable Indebtedness deemed to be outstanding in
respect of all Sale/Leaseback Transactions entered into pursuant to clause (a)
of Section 4.12 (exclusive of any such Sale/Leaseback Transactions otherwise
permitted under clauses (a) through (h) above), does not at the time such
Indebtedness is incurred exceed 5% of the Consolidated Net Tangible Assets of
the Company and its Restricted Subsidiaries (as derived from the most recent
audited consolidated balance sheet of the Company and its Subsidiaries).
Notwithstanding the foregoing, nothing in this Section 4.13 shall be deemed
to prohibit or otherwise limit the following types of transactions:
(1) the sale, granting of Liens with respect to, or other transfer of,
crude oil, natural gas or other petroleum hydrocarbons in place for a
period of time until, or in an amount such that, the transferee will
realize therefrom a specified amount (however determined) of money or of
such crude oil, natural gas or other petroleum hydrocarbons;
(2) the sale or other transfer of any other interest in property of the
character commonly referred to as a production payment, overriding royalty,
forward sale or similar interest;
(3) the entering into of Hedging Obligations although Liens securing any
Indebtedness for borrowed money that is the subject of any Hedging
Obligations shall not be permitted hereby unless permitted under clauses
(a) through (i) above; or
(4) the granting of Liens required by any contract or statute in order to
permit the Company or any Restricted Subsidiary to perform any contract or
subcontract made by it with or at the request of the United States or any
State thereof or any department, agency or instrumentality of either, or to
secure partial, progress, advance or other payments to the Company or any
Restricted Subsidiary by such governmental unit pursuant to the provisions
of any contract or statute.
ARTICLE V
HOLDERS' LISTS AND REPORTS
BY THE TRUSTEE
--------------
Section 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND
------------------------------------------------------
ADDRESSES OF HOLDERS; PRESERVATION OF INFORMATION. The Company covenants and
- -------------------------------------------------
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Registered Holders as of such record
date, and
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(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 contents as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
- -------- -------
lists shall not be required to be furnished.
The Company shall also be required to furnish to the Trustee at all such
times set forth above all information in the possession or control of the
Company or any of its paying agents other than the Trustee as to the names and
addresses of the Bearer Holders of all series; provided, however, that the
-------- -------
Company shall have no obligation to investigate any matter relating to any
Bearer Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (i)
contained in the most recent list furnished to it as provided in this Section
5.01 or (ii) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 5.01 upon receipt of a new list so furnished.
Section 5.02. COMMUNICATIONS TO HOLDERS. Holders may communicate pursuant
-------------------------
to Section 312(b) of the TIA with other Holders with respect to their rights
under this Indenture or the Debt Securities. The Company, the Trustee, the
Registrar and anyone else shall have the protection of Section 312(c) of the
TIA.
Section 5.03. REPORTS BY TRUSTEE. Within 60 days after each January 31,
------------------
beginning with January 31, 1999, and in any event on or before April 1 in each
year, the Trustee shall mail to Holders a brief report dated as of such January
31 that complies with TIA (S) 313 (a); provided, however, that if no event
described in TIA (S) 313 (a) has occurred within the twelve months preceding the
reporting date, no report need be transmitted. The Trustee also shall comply
with TIA (S) 313 (b).
Reports pursuant to this Section 5.03 shall be transmitted by mail:
(a) to all Registered Holders, as the names and addresses of such
Holders appear in the Debt Security Register;
(b) to such Bearer Holders of any series as have, within two years
preceding such transmission, filed their names and addresses with the Trustee
for such series for that purpose; and
(c) except in the cases of reports under Section 313(b)(2) of the TIA,
to each Holder of a Debt Security of any series whose name and address appear in
the information preserved at the time by the Trustee in accordance with Section
5.01.
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<PAGE>
A copy of each report at the time of its mailing to Holders shall be filed
with the Securities and Exchange Commission and each stock exchange (if any) on
which the Debt Securities of any series are listed. The Company agrees to
notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
Section 5.04. RECORD DATES FOR ACTION BY HOLDERS. If the Company shall
----------------------------------
solicit from the holders of Debt Securities of any series any action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action), the Company may, at its
option, by resolution of the Board of Directors, fix in advance a record date
for the determination of Holders of Debt Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed,
such action may be sought or given before or after the record date, but only the
Holders of Debt Securities of record at the close of business on such record
date shall be deemed to be Holders of Debt Securities for the purpose of
determining whether Holders of the requisite proportion of Debt Securities of
such series Outstanding have authorized or agreed or consented to such action,
and for that purpose the Debt Securities of such series Outstanding shall be
computed as of such record date.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
-------------------------------------------------------
Section 6.01. EVENTS OF DEFAULT. If any one or more of the following
-----------------
shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an "Event of Default"):
(a) default in the payment of any installment of interest upon any
Debt Securities of that series or any payment with respect to the related
Coupons, if any, as and when the same shall become due and payable, whether or
not such payment shall be prohibited by Article XII, if applicable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on
any Debt Securities of that series as and when the same shall become due and
payable, whether at maturity, upon redemption, by declaration, upon required
repurchase or otherwise, whether or not such payment shall be prohibited by
Article XII, if applicable; or
(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series as and when the same shall become due and
payable; or
(d) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the Debt
Securities of that series, in any resolution of the Board of Directors
authorizing the issuance of that series of Debt Securities, in this Indenture
with respect to such series or in any supplemental Indenture with respect to
such series (other than a covenant a default in the performance of which is
elsewhere in this Section specifically dealt with), continuing for a period of
60 days after the date on which written notice specifying such failure and
requiring the Company to remedy the same shall have been given, by registered or
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<PAGE>
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Debt
Securities of that series at the time Outstanding; or
(e) any default shall occur which results in the acceleration of the
maturity of any Indebtedness of the Company or any Restricted Subsidiary (other
than the series of Debt Securities) having an outstanding principal amount of $5
million or more individually or, taken together with all other such Indebtedness
that has been so accelerated, in the aggregate; or any default shall occur in
the payment of any principal or interest in respect of any Indebtedness of the
Company or any Restricted Subsidiary (other than the series of Debt Securities)
having an outstanding principal amount of $5 million or more individually or,
taken together with all other such Indebtedness with respect to which any such
payment has not been made in the aggregate and such default shall be continuing
for a period of 30 days without the Company or such Restricted Subsidiary, as
the case may be, effecting a cure of such default;
(f) failure by the Company or any Restricted Subsidiary to pay final,
non-appealable judgments aggregating in excess of $10 million, which judgments
are not paid, discharged or stayed for a period of 60 days after the judgment
becomes final and non-appealable;
(g) the Company or any Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law,
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property; or
(iv) makes a general assignment for the benefit of its creditors;
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any Restricted Subsidiary as
debtor in an involuntary case,
(ii) appoints a Custodian of the Company or any Restricted Subsidiary or a
Custodian for all or substantially all of the property of the Company or any
Restricted Subsidiary, or
(iii) orders the liquidation of the Company or any Restricted
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days; or
(i) any other Event of Default provided with respect to Debt
Securities of that series;
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<PAGE>
then and in each and every case that an Event of Default described in clause
(a), (b), (c), (d), (e), (f), or (i) with respect to Debt Securities of that
series at the time Outstanding occurs and is continuing, unless the principal of
and interest on all the Debt Securities of that series shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Debt Securities of that series then
Outstanding hereunder, by notice in writing to the Company (and to the Trustee
if given by Holders), may declare the principal of (or, if the Debt Securities
of that series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of that series) and interest
on all the Debt Securities of that series to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Debt Securities or Coupons
appertaining thereto of that series contained to the contrary notwithstanding.
If an Event of Default described in clause (g) or (h) occurs, then and in each
and every such case, unless the principal of and interest on all the Debt
Securities shall have become due and payable, the principal of (or, if any Debt
Securities are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms thereto) and interest on all
the Debt Securities then Outstanding hereunder shall ipso facto become and be
---- -----
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders, anything in this Indenture or in the Debt Securities
contained to the contrary notwithstanding.
The Holders of a majority in aggregate principal amount of the Debt
Securities of a particular series by notice to the Trustee may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree already rendered and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. Upon any such rescission, the parties
hereto shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the parties hereto shall
continue as though no such proceeding had been taken.
Section 6.02. COLLECTION OF INDEBTEDNESS BY TRUSTEE, ETC. If an Event of
------------------------------------------
Default occurs and is continuing, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and unpaid
or enforce the performance of any provision of the Debt Securities of the
affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities,
and the Coupons, if any, appertaining thereto, of such series (and collect in
the manner provided by law out of the property of the Company or any other
obligor upon the Debt Securities and Coupons of such series wherever situated
the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon the Debt Securities and
Coupons, if any, of any series under Title 11 of the United States Code or any
other Federal or State bankruptcy, insolvency or similar law, or in case a
receiver, trustee or other similar official shall have been appointed for its
property, or in case of any other similar judicial proceedings relative to the
Company or any other obligor upon the Debt Securities of any series, its
creditors or its property, the Trustee, irrespective of whether the principal of
Debt Securities and Coupons, if any, of any series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have
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<PAGE>
made any demand pursuant to the provisions of this Section 6.02, shall be
entitled and empowered, by intervention in such proceedings or otherwise, to
file and prove a claim or claims for the whole amount of principal, premium, if
any, and interest (or, if the Debt Securities of such series are Original Issue
Discount Debt Securities, such portion of the principal amount as may be
specified in the terms of such series) owing and unpaid in respect of the Debt
Securities and Coupons of such series, and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for reasonable compensation to the Trustee, its
agents, attorneys and counsel, and for reimbursement of all expenses and
liabilities Incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith) and of the Holders thereof allowed in any such
judicial proceedings relative to the Company, or any other obligor upon the Debt
Securities and Coupons of such series, its creditors or its property, and to
collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims
of such Holders and of the Trustee on their behalf, and any receiver, assignee
or trustee in bankruptcy or reorganization is hereby authorized by each of such
Holders to make payments to the Trustee, and, in the event that the Trustee
shall consent to the making of payments directly to such Holders, to pay to the
Trustee such amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other reasonable
expenses and liabilities Incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or under
any of the Debt Securities and the Coupons, if any, appertaining thereto, of any
series, may be enforced by the Trustee without the possession of any such Debt
Securities or Coupons, or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment (except for any amounts payable to the Trustee pursuant
to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt
Securities or Coupons in respect of which such action was taken.
In case of an Event of Default hereunder the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 6.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys or
------------------------------------------
other property collected by the Trustee pursuant to Section 6.02 with respect to
Debt Securities and Coupons, if any, of any series shall be applied, after
giving effect to the provisions of Article XII, if applicable, in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys or other property, upon presentation of the several Debt Securities
or Coupons of such series in respect of which moneys or other property have been
collected, and the notation thereon of the payment, if only partially paid, and
upon surrender thereof if fully paid:
FIRST: To the payment of all money due the Trustee pursuant to
Section 7.06;
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SECOND: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall not have become due, to
the payment of interest on the Debt Securities or Coupons of such series in the
order of the maturity of the installments of such interest, with interest (to
the extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the rate or Yield to Maturity (in the case
of Original Issue Discount Debt Securities) borne by the Debt Securities or
Coupons of such series, such payments to be made ratably to the Persons entitled
thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Debt Securities in
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Debt Securities or Coupons of such series for principal and
premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate or Yield to Maturity
(in the case of Original Issue Discount Debt Securities) borne by the Debt
Securities or Coupons of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the Debt
Securities and Coupons of such series, then to the payment of such principal and
premium, if any, and interest, without preference or priority of principal and
premium, if any, over interest, or of interest over principal and premium, if
any, or of any installment of interest over any other installment of interest,
or of any Debt Security or Coupon of such series over any Debt Security or
Coupon of such series, ratably to the aggregate of such principal and premium,
if any, and interest; and
FOURTH: The remainder, if any, shall be paid to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to receive the
same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.03. At least 15 days before such record
date, the Company shall mail to each Holder and the Trustee a notice that states
the record date, the payment date and amount to be paid.
Section 6.04. LIMITATION ON SUITS BY HOLDERS. No Holder of any Debt
------------------------------
Security or Coupon of any series shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or proceeding at law
or in equity or in bankruptcy or otherwise, upon or under or with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to Debt Securities of
that same series and of the continuance thereof and unless the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debt Securities
of that series shall have made written request upon the Trustee to institute
such action or proceedings in respect of such Event of Default in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
Incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security or Coupon with every other Holder and the Trustee, that no one or
more Holders shall have any right in any manner whatever by virtue or by
availing of any provision of this
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Indenture to affect, disturb or prejudice the rights of any Holders, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all such Holders. For
the protection and enforcement of the provisions of this Section 6.04, each and
every Holder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the right
of any Holder of any Debt Security or Coupon to receive payment of the principal
of, and premium, if any, and (subject to Section 2.12) interest on, such Debt
Security or Coupon, on or after the respective due dates expressed in such Debt
Security, and to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.05. REMEDIES CUMULATIVE; DELAY OR OMISSION IN EXERCISE OF RIGHTS
------------------------------------------------------------
NOT A WAIVER OF DEFAULT. All powers and remedies given by this Article VI to
- -----------------------
the Trustee or to the Holders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders, by judicial proceedings or otherwise,
to enforce the performance or observance of the covenants and agreements
contained in this Indenture, and no delay or omission of the Trustee or of any
Holder to exercise any right or power accruing upon any Default occurring and
continuing as aforesaid, shall impair any such right or power, or shall be
construed to be a waiver of any such Default or an acquiescence therein; and,
subject to the provisions of Section 6.04, every power and remedy given by this
Article VI or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Holders.
Section 6.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF DEBT
---------------------------------------------------------
SECURITIES TO DIRECT TRUSTEE AND TO WAIVE DEFAULT. The Holders of a majority in
- -------------------------------------------------
aggregate principal amount of the Debt Securities of any series at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Debt Securities
of such series; provided, however, that such direction shall not be otherwise
-------- -------
than in accordance with law and the provisions of this Indenture, and that
subject to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided, further, however, that nothing in this Indenture contained shall
-------- ------- -------
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities and any related Coupons of that series waive
any past Default or Event of Default and its consequences for that series
specified in the terms thereof as contemplated by Section 2.03, except a
Default in the payment of the principal of, and premium, if any, or interest on,
any of the Debt Securities or in the payment of any related Coupon and a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Holder affected
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thereby. In case of any such waiver, such Default shall cease to exist, any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, and the Company, the Trustee and the Holders of the
Debt Securities of that series shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.07. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY
-------------------------------------------------------
WITHHOLD SUCH NOTICE IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90
- ---------------------------------------------
days after the occurrence of a Default known to it with respect to a series of
Debt Securities or Coupons, if any, give to the Holders thereof, in the manner
provided in Section 13.03, notice of all Defaults with respect to such series
known to the Trustee, unless such Defaults shall have been cured or waived
before the giving of such notice; provided, that, except in the case of Default
--------
in the payment of the principal of, or premium, if any, or interest on, any of
the Debt Securities or Coupons of such series or in the making of any sinking
fund payment with respect to the Debt 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 committee of directors or responsible
officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders thereof.
Section 6.08. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN SUITS
-----------------------------------------------------------
UNDER THE INDENTURE OR AGAINST THE TRUSTEE. All parties to this Indenture
- ------------------------------------------
agree, and each Holder of any Debt Security or Coupon by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken 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 in the manner and to the extent provided in the TIA, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 6.08 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than ten percent in principal amount
of the Outstanding Debt Securities of that series or to any suit instituted by
any Holder for the enforcement of the payment of the principal of, or premium,
if any, or interest on, any Debt Security or Coupon on or after the due date for
such payment expressed in such Debt Security or Coupon.
ARTICLE VII
CONCERNING THE TRUSTEE
----------------------
Section 7.01. CERTAIN DUTIES AND RESPONSIBILITIES. The Trustee, prior to
-----------------------------------
the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived), 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.
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<PAGE>
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own wilful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to
Debt Securities and Coupons, if any, of any series shall be determined
solely by the express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and obligations
with respect to such series as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect to such
series shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture; but the
Trustee shall examine the evidence furnished to it pursuant to Sections
4.05 and 4.06 to determine whether or not such evidence conforms to the
requirement of this Indenture;
(iii) the Trustee shall not be liable for an 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; and
(iv) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it with respect to Debt Securities of any
series in good faith in accordance with the direction of the Holders of not
less than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Debt Securities of such series.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any Personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be 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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<PAGE>
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 7.02. CERTAIN RIGHTS OF TRUSTEE. Except as otherwise provided in
-------------------------
Section 7.01:
(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 or other paper or document (whether in its original or facsimile form)
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Order (unless other evidence
in respect thereof be herein specifically prescribed); and any resolution of the
Board of Directors may be evidenced to the Trustee by a copy thereof certified
by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of Debt Securities or Coupons of any series
pursuant to the provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default and after the
curing of all Events of Default which may have occurred, 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, approval or other paper or document, unless
requested in writing to do so by the Holders of a majority in aggregate
principal amount of the then Outstanding Debt Securities of a series affected by
such matter; provided, however, that if the payment within a reasonable time to
-------- -------
the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such investigation shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;
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(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder; and
(h) if any property other than cash shall at any time be subject to a
Lien in favor of the Holders, the Trustee, if and to the extent authorized by a
receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such lien, shall be entitled
to make advances for the purpose of preserving such property or of discharging
tax Liens or other prior Liens or encumbrances thereon.
Section 7.03. TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR IN DEBT
-------------------------------------------------------
SECURITIES. The recitals contained herein, in the Debt Securities (except the
- ----------
Trustee's certificate of authentication) and in any Coupons shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Debt Securities or Coupons,
if any, of any series, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Debt
Securities and perform its obligations hereunder, and that the statements made
by it or to be made by it in a Statement of Eligibility and Qualification on
Form T-1 supplied to the Company are true and accurate. The Trustee shall not
be accountable for the use or application by the Company of any of the Debt
Securities or of the proceeds thereof.
Section 7.04. TRUSTEE, PAYING AGENT OR REGISTRAR MAY OWN DEBT SECURITIES.
----------------------------------------------------------
The Trustee or any paying agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities or Coupons and
subject to the provisions of the TIA relating to conflicts of interest and
preferential claims may otherwise deal with the Company with the same rights it
would have if it were not Trustee, paying agent or Registrar.
Section 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST. Subject to
----------------------------------------------
the provisions of Section 11.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but 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 moneys received by it hereunder. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time to the Company upon a Company Order.
Section 7.06. COMPENSATION AND REIMBURSEMENT. The Company covenants and
------------------------------
agrees to pay in Dollars to the Trustee from time to time, and the Trustee shall
be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
Incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence or bad faith. The Company also covenants to
indemnify in Dollars the Trustee for, and to hold it
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harmless against, any loss, liability or expense Incurred without negligence,
wilful misconduct or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim of liability in connection with the exercise or performance of
any of its powers or duties hereunder. The obligations of the Company under this
Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. The Company and the Holders agree that such additional indebtedness
shall be secured by a Lien prior to that of the Debt Securities and Coupons, if
any, upon all property and funds held or collected by the Trustee, as such,
except funds held in trust for the payment of principal of, and premium, if any,
or interest on, particular Debt Securities and Coupons.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
Section 7.07. RIGHT OF TRUSTEE TO RELY ON AN OFFICERS' CERTIFICATE WHERE
----------------------------------------------------------
NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in
- -----------------------------------------
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
Section 7.08. SEPARATE TRUSTEE; REPLACEMENT OF TRUSTEE. The Company may,
----------------------------------------
but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the Trustee or
its property; or
(d) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns, is removed by the Company or by the Holders of a
majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee
and no appointment of a successor Trustee shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders of Debt Securities of each applicable series. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.06 shall continue for the
benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor trustee
with respect to the Debt Securities of one or more series, the Company, any
retiring Trustee and each successor or separate Trustee with respect to the Debt
Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (i) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (ii) that 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
separate, retiring or successor 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.
Section 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
---------------------------
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
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In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
Section 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
-----------------------------
times satisfy the requirements of Section 310(a) of the TIA. The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. No obligor upon the Debt
Securities or Coupons, if any, of a particular series or Person directly or
indirectly controlling, controlled by or under common control with such obligor
shall serve as Trustee upon the Debt Securities and Coupons of such series. The
Trustee shall comply with Section 310(b) of the TIA; provided, however, that
-------- -------
there shall be excluded from the operation of Section 310(b)(1) of the TIA this
Indenture or 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 TIA are met.
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
-------------------------------------------------
Trustee shall comply with Section 311(a) of the TIA, excluding any creditor
relationship listed in Section 311(b) of the TIA. A Trustee who has resigned or
been removed shall be subject to Section 311(a) of the TIA to the extent
indicated therein.
Section 7.12. COMPLIANCE WITH TAX LAWS. The Trustee hereby agrees to
------------------------
comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Security Registrar,
paying agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
CONCERNING THE HOLDERS
----------------------
Section 8.01. EVIDENCE OF ACTION BY HOLDERS. Whenever in this Indenture
-----------------------------
it is provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any or all series may take action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced by any instrument or any number of instruments of
similar tenor executed by Holders in Person or by agent or proxy appointed in
writing, by the record of the Holders voting in favor thereof at any meeting of
Holders duly called and held in accordance with the provisions of Section 5.02
or by a combination of such instrument or instruments and any such record of
such a meeting of Holders.
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Section 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF DEBT
--------------------------------------------------------
SECURITIES. Subject to the provisions of Sections 7.01, 7.02 and 13.11, proof of
- ----------
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The ownership of Registered Securities of any series shall be proved by the
Debt Security Register or by a certificate of the Registrar for such series.
The ownership of Bearer Securities shall be proved by production of such
Bearer Securities or by a certificate executed by any bank or trust company,
which certificate shall be dated and shall state on the date thereof a Bearer
Security bearing a specified identifying number or other mark was deposited with
or exhibited to the Person executing such certificate by the Person named in
such certificate, or by any other proof of possession reasonably satisfactory to
the Trustee. The holding by the Person named in any such certificate of any
Bearer Security specified therein shall be presumed to continue for a period of
one year unless at the time of determination of such holding (a) another
certificate bearing a later date issued in respect of the same Bearer Security
shall be produced, (b) such Bearer Security shall be produced by some other
Person, (c) such Bearer Security shall have been registered on the Debt Security
Register, if, pursuant to Section 2.03, such Bearer Security can be so
registered, or (d) such Bearer Security shall have been canceled or paid.
The Trustee may require such additional proof of any matter referred to in
this Section 8.02 as it shall deem necessary.
Section 8.03. WHO MAY BE DEEMED OWNER OF DEBT SECURITIES. Prior to due
------------------------------------------
presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Section
2.03) interest on such Registered Security and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Registrar shall
be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
The Company, the Trustee and any paying agent may deem and treat the Holder
of any Bearer Security or Coupon as the absolute owner of such Bearer Security
or Coupon (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and premium,
if any, and (subject to Section 2.03) interest on such Bearer Security or Coupon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent shall be affected by any notice to the contrary; and all such
payments so made to any such Holder for the time being, or upon his order, shall
be valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Bearer Security or
Coupon.
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None of the Company, the Trustee, any paying agent or the Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 8.04. INSTRUMENTS EXECUTED BY HOLDERS BIND FUTURE HOLDERS. At any
---------------------------------------------------
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Debt Security. Except as aforesaid any such action
taken by the Holder of any Debt Security shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Debt Security and all
past, present and future Holders of Coupons, if any, appertaining thereto, and
of any Debt Security issued upon transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security or such other Debt Securities or Coupons. Any action
taken by the Holders of the percentage in aggregate principal amount of the Debt
Securities of any series specified in this Indenture in connection with such
action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Securities and Coupons of such series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
ARTICLE IX
SUPPLEMENTAL INDENTURES
-----------------------
Section 9.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURE MAY BE ENTERED
--------------------------------------------------------
INTO WITHOUT CONSENT OF HOLDERS. The Company, when authorized by a resolution
- -------------------------------
of the Board of Directors, and the Trustee may from time to time and at any
time, without the consent of Holders, enter into an Indenture or Indentures
supplemental hereto (which shall conform to the provisions of the TIA as in
force at the date of the execution thereof) for one or more of the following
purposes:
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(a) to evidence the succession pursuant to Article X of another Person
to the Company, or successive successions, and the assumption by the Successor
Company (as defined in Section 10.01) of the covenants, agreements and
obligations of the Company in this Indenture and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the Company,
to add to the covenants of the Company such further covenants, restrictions,
conditions or provisions for the protection of the Holders of all or any series
of Debt Securities and the Coupons, if any, appertaining thereto (and if such
covenants are to be for the benefit of less than all series of Debt Securities,
stating that such covenants are expressly being included solely for the benefit
of such series) as the Board of Directors shall consider to be for the
protection of the Holders of such Debt Securities, and to make the occurrence,
or the occurrence and continuance, of a Default in any of such additional
covenants, restrictions, conditions or provisions a Default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture; provided, that in respect of any such additional
--------
covenant, restriction, condition or provision such supplemental Indenture may
provide for a particular period of grace after Default (which period may be
shorter or longer than that allowed in the case of other Defaults) or may
provide for an immediate enforcement upon such Default or may limit the remedies
available to the Trustee upon such Default or may limit the right of the Holders
of a majority in aggregate principal amount of any or all series of Debt
Securities to waive such default;
(c) to cure any ambiguity or omission or to correct or supplement any
provision contained herein, in any supplemental Indenture or in any Debt
Securities of any series that may be defective or inconsistent with any other
provision contained herein, in any supplemental Indenture or in the Debt
Securities of such series; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not adversely affect
the interests of any Holders of Debt Securities of any series;
(d) to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental hereto under
the TIA as then in effect, except that nothing herein contained shall permit or
authorize the inclusion in any Indenture supplemental hereto of the provisions
referred to in Section 316(a)(2) of the TIA;
(e) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registerable as to principal, to change or
eliminate any restrictions on the payment of principal of, or premium, if any,
on, Registered Securities or of principal of, or premium, if any, or interest
on, Bearer Securities or to permit Registered Securities to be exchanged for
Bearer Securities; provided, that any such action shall not adversely affect the
--------
interests of the Holders of Debt Securities or any Coupons of any series in any
material respect or permit or facilitate the issuance of Debt Securities of any
series in uncertificated form;
(f) to comply with Article X;
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(g) in the case of any Debt Securities and Coupons, if any,
appertaining thereto subordinated pursuant to Article XII, to make any change in
Article XII that would limit or terminate the benefits available to any holder
of Senior Indebtedness (or Representatives therefor) under Article XII;
(h) to add Guarantees with respect to any or all of the Debt
Securities or to secure any or all of the Debt Securities;
(i) to make any change that does not adversely affect the rights of
any Holder;
(j) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
however, that any such addition, change or elimination not otherwise permitted
under this Section 9.01 shall neither apply to any Debt Security of any series
created prior to the execution of such supplemental Indenture and entitled to
the benefit of such provision nor modify the rights of the Holder of any such
Debt Security with respect to such provision or shall become effective only
when there is no such Debt Security Outstanding;
(k) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt 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;
(l) to establish the form or terms of Debt Securities and Coupons, if
any, of any series as permitted by Sections 2.01 and 2.03; and
(m) to provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities (provided that the uncertificated Debt
Securities are issued in registered form for purposes of Section 163(f) of the
Internal Revenue Code of 1986, as amended, or in a manner such that the
uncertificated Debt Securities are described in Section 163(f)(2)(B) of the
Internal Revenue Code of 1986, as amended).
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental Indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental Indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debt Securities or Coupons, if any, appertaining thereto
at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
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In the case of Debt Securities or Coupons, if any, appertaining thereto
subordinated pursuant to Article XII, an amendment under this Section 9.01 may
not make any change that adversely affects the rights under Article XII of any
holder of Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the Company
shall mail to Holders of Debt Securities of each series affected thereby a
notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
Section 9.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF DEBT
---------------------------------------------------------
SECURITIES. Without notice to any Holder but with the consent (evidenced as
- ----------
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time enter into an Indenture or Indentures supplemental hereto (which
shall conform to the provisions of the TIA as in force at the date of execution
thereof) for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
Indenture or of modifying in any manner the rights of the Holders of the Debt
Securities of such series; provided, that no such supplemental Indenture,
--------
without the consent of the Holders of each Debt Security so affected, shall
reduce the percentage in principal amount of Debt Securities of any series whose
Holders must consent to an amendment; reduce the rate of or extend the time for
payment of interest on any Debt Security or Coupon or reduce the amount of any
payment to be made with respect to any Coupon; reduce the principal of or
extend the Stated Maturity of any Debt Security; reduce the premium payable
upon the redemption of any Debt Security or change the time at which any Debt
Security may or shall be redeemed in accordance with Article III; make any Debt
Security or Coupon payable in Currency other than that stated in the Debt
Security; in the case of any Debt Security or Coupons, if any, appertaining
thereto subordinated pursuant to Article XII, make any change in Article XII
that adversely affects the rights of any Holder under Article XII; release any
security that may have been granted in respect of the Debt Securities; make any
change in Section 6.06 or this Section 9.02; change any obligation of the
Company to pay additional interest pursuant to Section 4.07; or limit the
obligation of the Company to maintain a paying agency outside the United States
for payment on Bearer Securities as provided in Section 4.02 or limit the
obligation of the Company to redeem a Bearer Security as provided in Section
3.02(b).
A supplemental Indenture which changes or eliminates any covenant or other
provision of this Indenture which has been expressly included solely for the
benefit of one or more particular series of Debt Securities and Coupons, if any,
or which modifies the rights of the Holders of Debt Securities and Coupons 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 Debt Securities
and Coupons, if any, of any other series.
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Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental Indenture unless such supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion but shall not be obligated to enter
into such supplemental Indenture.
It shall not be necessary for the consent of the Holders under this Section
9.02 to approve the particular form of any proposed supplemental Indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
In the case of any Debt Securities or Coupons, if any, appertaining
thereto, subordinated pursuant to Article XII, an amendment under this Section
9.02 may not make any change that adversely affects the rights under Article XII
of any holder of Senior Indebtedness then outstanding unless the holders of such
Senior Indebtedness (or any group or Representative thereof authorized to give a
consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the Company
shall mail to Holders of Debt Securities of each series affected thereby a
notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.02.
Section 9.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
---------------------------------
supplemental Indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental Indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
Section 9.04. DEBT SECURITIES MAY BEAR NOTATION OF CHANGES BY SUPPLEMENTAL
------------------------------------------------------------
INDENTURES. Debt Securities and Coupons, if any, of any series authenticated
- ----------
and delivered after the execution of any supplemental Indenture pursuant to the
provisions of this Article IX 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. New Debt Securities and Coupons of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental Indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Debt Securities
and Coupons of such series then Outstanding. Failure to make the appropriate
notation or to issue a new Debt Security or Coupon of such series shall not
affect the validity of such amendment.
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ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
-----------------------------------------
Section 10.01. CONSOLIDATIONS AND MERGERS OF THE COMPANY. The Company
-----------------------------------------
shall not consolidate with or merge with or into any Person, or convey, transfer
or lease all or substantially all its assets, unless: (a) either (i) the
Company shall be the continuing Person in the case of a merger or (ii) the
resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia and the
Successor Company shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debt Securities and Coupons, if any,
according to their tenor, and this Indenture; (b) immediately after giving
effect to such transaction (and treating any Indebtedness which becomes an
obligation of the Successor Company or any Subsidiary of the Company as a result
of such transaction as having been incurred by the Successor Company or such
Subsidiary at the time of such transaction), no Default or Event of Default
would occur or be continuing; (c) the Successor Company waives any right to
redeem any Bearer Security under circumstances in which the Successor Company
would be entitled to redeem such Bearer Security but the Company would not have
been so entitled to redeem if the consolidation, merger, conveyance, transfer or
lease had not occurred; and (d) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental Indenture (if any)
complies with this Indenture.
Section 10.02. RIGHTS AND DUTIES OF SUCCESSOR COMPANY. In case of any
--------------------------------------
consolidation or merger, or conveyance or transfer of the assets of the Company
as an entirety or substantially as an entirety in accordance with Section 10.01,
the Successor Company shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party of the first part,
and the predecessor corporation shall be relieved of any further obligation
under the Indenture and the Securities. The Successor Company thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all the Debt Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of the Successor Company, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Debt Securities and Coupons, if
any, appertaining thereto, which previously shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any Debt
Securities and Coupons, if any, appertaining thereto, which the Successor
Company thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Debt Securities and Coupons, if any, appertaining thereto
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities and Coupons, if any, appertaining thereto
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all such Debt Securities and Coupons had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Debt
Securities and Coupons, if any, appertaining thereto thereafter to be issued as
may be appropriate.
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ARTICLE XI
SATISFACTION AND DISCHARGE OF
INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
---------------------------------------
Section 11.01. APPLICABILITY OF ARTICLE. If, pursuant to Section
------------------------
2.03, provision is made for the defeasance of Debt Securities of a series and if
the Debt Securities of such series are Registered Securities and denominated and
payable only in Dollars (except as provided pursuant to Section 2.03), then the
provisions of this Article XI relating to defeasance of Debt Securities shall be
applicable except as otherwise specified pursuant to Section 2.03 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or for Bearer Securities may be specified
pursuant to Section 2.03.
Section 11.02. SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE.
---------------------------------------------------
(a) If at any time the Company shall have delivered to the Trustee for
cancellation all Debt Securities of any series theretofore authenticated and
delivered (other than Coupons appertaining to Bearer Securities of such series
called for redemption and maturing after the relevant redemption date, surrender
of which has been waived, any Debt Securities and Coupons of such series which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.09 and Debt Securities and Coupons for whose
payment money has theretofore been deposited in trust and thereafter repaid to
the Company as provided in Section 11.05) or all Debt Securities and the
Coupons, if any, of such series not theretofore delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee as trust funds the
entire amount in the Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Section 2.03) sufficient to pay at
maturity or upon redemption all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation, including principal and premium, if
any, and interest due or to become due on such date of maturity or redemption
date, as the case may be, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal of, and premium, if
any, and interest on, such Debt Securities and any right to receive additional
interest as provided in Section 4.07) with respect to the Debt Securities of
such series, and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, all
its obligations under the Debt Securities of such series and this Indenture with
respect to the Debt Securities of such series ("legal defeasance option") or the
operation of Sections 6.01(d), (e), (f) and (i) ("covenant defeasance option").
The Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
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If the Company exercises its legal defeasance option, payment of the Debt
Securities of the defeased series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of
the Debt Securities of the defeased series may not be accelerated because of an
Event of Default specified in Sections 6.01(d), (e), (f) and (i) (except to the
extent covenants or agreements referenced in such Sections remain applicable).
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06
and 11.07 shall survive until the Debt Securities of the defeased series have
been paid in full. Thereafter, the Company's obligations in Sections 7.06,
11.05 and 11.06 shall survive.
Section 11.03. CONDITIONS OF DEFEASANCE. The Company may exercise its
------------------------
legal defeasance option or its covenant defeasance option with respect to Debt
Securities of a particular series only if:
(a) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and premium, if
any, and interest on, the Debt Securities of such series to maturity or
redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay the principal, premium and interest when due on all the Debt
Securities of such series to maturity or redemption, as the case may be;
(c) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(g) or (h) with respect to the
Company occurs which is continuing at the end of the period;
(d) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(e) the deposit does not constitute a default under any other
agreement binding on the Company and, if the Debt Securities of such series are
subordinated pursuant to Article XII, is not prohibited by Article XII;
(f) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of
1940;
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(g) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that the Company
has received from the Internal Revenue Service a ruling, or since the date of
this Indenture there has been a change in the applicable Federal income tax law,
in either case of the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred;
(h) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Debt Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such covenant defeasance
had not occurred; and
(i) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as contemplated
by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Debt Securities of such series at a future
date in accordance with Article III.
Section 11.04. APPLICATION OF TRUST MONEY. The Trustee shall hold in
--------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities and Coupons, if any, of the defeased series. In the event
the Debt Securities and Coupons, if any, of the defeased series are subordinated
pursuant to Article XII, money and securities so held in trust are not subject
to Article XII.
Section 11.05. REPAYMENT TO COMPANY. The Trustee and any paying agent
--------------------
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors.
Section 11.06. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS. The Company
-----------------------------------------
shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
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Section 11.07. REINSTATEMENT. If the Trustee or any paying agent is
-------------
unable to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE XII
SUBORDINATION OF DEBT SECURITIES
--------------------------------
Section 12.01. APPLICABILITY OF ARTICLE; AGREEMENT TO SUBORDINATE.
--------------------------------------------------
The provisions of this Article XII shall be applicable to the Debt Securities of
any series (Debt Securities of such series referred to in this Article XII as
"Subordinated Debt Securities") designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated
Debt Security agrees that the Indebtedness evidenced by such Subordinated Debt
Security is subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment of all Senior Indebtedness
and that the subordination is for the benefit of and enforceable by the holders
of Senior Indebtedness. All provisions of this Article XII shall be subject to
Section 12.12.
Section 12.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment
------------------------------------
or distribution of the assets of the Company to creditors upon a total or
partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(a) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the Senior Indebtedness (including interest (if any),
accruing on or after the commencement of a proceeding in bankruptcy, whether or
not allowed as a claim against the Company in such bankruptcy proceeding) before
Holders of Subordinated Debt Securities shall be entitled to receive any payment
of principal of, or premium, if any, or interest on, the Subordinated Debt
Securities; and
(b) until the Senior Indebtedness is paid in full, any distribution to
which Holders of Subordinated Debt Securities would be entitled but for this
Article XII shall be made to holders of Senior Indebtedness as their interests
may appear, except that such Holders may receive shares of stock and any debt
securities that are subordinated to Senior Indebtedness to at least the same
extent as the Subordinated Debt Securities.
Section 12.03. DEFAULT ON SENIOR INDEBTEDNESS. The Company may not
------------------------------
pay the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.05, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.06) any Debt Securities (collectively, "pay
the Subordinated Debt Securities") if any
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principal, premium or interest in respect of Senior Indebtedness is not paid
within any applicable grace period (including at maturity) or any other default
on Senior Indebtedness occurs and the maturity of such Senior Indebtedness is
accelerated in accordance with its terms unless, in either case, the default has
been cured or waived and any such acceleration has been rescinded or such Senior
Indebtedness has been paid in full in cash; provided, however, that the Company
-------- -------
may pay the Subordinated Debt Securities without regard to the foregoing if the
Company and the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (a) or (b)
of the preceding sentence) with respect to any Senior Indebtedness pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Subordinated Debt Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Company and the Trustee of written notice of
such default from the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a "Blockage Notice")
and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated by written notice to the Trustee and the Company from the Person or
Persons who gave such Blockage Notice, by repayment in full in cash of such
Designated Senior Indebtedness or because the default giving rise to such
Blockage Notice is no longer continuing). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section 12.03), unless the holders of
such Designated Senior Indebtedness or the Representative of such holders shall
have accelerated the maturity of such Designated Senior Indebtedness, the
Company may resume payments on the Subordinated Debt Securities after such
Payment Blockage Period. Not more than one Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to any number of issues of Senior Indebtedness during such period; provided,
--------
however, that if any Blockage Notice within such 360-day period is given by or
- -------
on behalf of any holders of Designated Senior Indebtedness (other than the Bank
Indebtedness), the Representative of the Bank Indebtedness may give another
Blockage Notice within such period; provided, further, however, that in no event
-------- ------- -------
may the total number of days during which any Payment Blockage Period or Periods
is in effect exceed 179 days in the aggregate during any 360 consecutive day
period. For purposes of this Section 12.03, no default or event of default which
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Senior Indebtedness initiating such Payment
Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Payment Blockage Period by the Representative of such Senior
Indebtedness, whether or not within a period of 360 consecutive days, unless
such default or event of default shall have been cured or waived for a period of
not less than 90 consecutive days.
Section 12.04. ACCELERATION OF PAYMENT OF DEBT SECURITIES. If payment
------------------------------------------
of the Subordinated Debt Securities is accelerated because of an Event of
Default, the Company or the Trustee shall promptly notify the holders of the
Designated Senior Indebtedness (or their Representatives) of the acceleration.
Section 12.05. WHEN DISTRIBUTION MUST BE PAID OVER. If a distribution
-----------------------------------
is made to Holders of Subordinated Debt Securities that because of this Article
XII should not have been made to them, the Holders who receive such distribution
shall hold it in trust for holders of Senior Indebtedness and pay it over to
them as their interests may appear.
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Section 12.06. SUBROGATION. After all Senior Indebtedness is paid in
-----------
full and until the Subordinated Debt Securities are paid in full, Holders
thereof shall be subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article XII to holders of Senior Indebtedness which otherwise would
have been made to Holders of Subordinated Debt Securities is not, as between the
Company and such Holders, a payment by the Company on Senior Indebtedness.
Section 12.07. RELATIVE RIGHTS. This Article XII defines the relative
---------------
rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(a) impair, as between the Company and Holders of either Subordinated
Debt Securities or Debt Securities, the obligation of the Company, which is
absolute and unconditional, to pay principal of, and premium, if any, and
interest on, the Subordinated Debt Securities and the Debt Securities in
accordance with their terms; or
(b) prevent the Trustee or any Holder of either Subordinated Debt
Securities or Debt Securities from exercising its respective available remedies
upon a Default, subject to the rights of holders of Senior Indebtedness to
receive distributions otherwise payable to Holders of Subordinated Debt
Securities.
Section 12.08. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No right
--------------------------------------------
of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Subordinated Debt Securities shall be impaired by
any act or failure to act by the Company or by its failure to comply with this
Indenture.
Section 12.09. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
----------------------------------
Section 12.03, the Trustee or any paying agent may continue to make payments on
Subordinated Debt Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two business days prior to the date of such payment, a responsible
officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. The Company, the Registrar, any paying agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
--------
however, that, if an issue of Senior Indebtedness has a Representative, only the
- -------
Representative may give the notice on behalf of the Holders of the Senior
Indebtedness of that issue.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and any paying agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XII with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
Section 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
----------------------------------------
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
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Section 12.11. ARTICLE XII NOT TO PREVENT DEFAULTS OR LIMIT RIGHT TO
-----------------------------------------------------
ACCELERATE. The failure to make a payment pursuant to the Debt Securities by
- ----------
reason of any provision in this Article XII shall not be construed as preventing
the occurrence of a Default. Nothing in this Article XII shall have any effect
on the right of the Holders or the Trustee to accelerate the maturity of either
the Subordinated Debt Securities or the Debt Securities, as the case may be.
Section 12.12. TRUST MONEYS NOT SUBORDINATED. Notwithstanding
-----------------------------
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article XI by the Trustee for
the payment of principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or the Debt Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article XII, and none of the Holders thereof shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness of
the Company or any other creditor of the Company.
Section 12.13. TRUSTEE ENTITLED TO RELY. Upon any payment or
------------------------
distribution pursuant to this Article XII, the Trustee and the Holders shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which any proceedings of the nature referred to in Section 12.02 are pending,
upon a certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to such Holders or upon the
Representatives for the holders of Senior Indebtedness for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XII. In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article XII, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XII.
Section 12.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder by
-----------------------------------
accepting a Subordinated Debt Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders of Subordinated Debt Securities
and the holders of Senior Indebtedness as provided in this Article XII and
appoints the Trustee as attorney-in-fact for any and all such purposes.
Section 12.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
-------------------------------------------
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
- ------------
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders of Subordinated Debt
Securities or the Company or any other Person, money or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article XII
or otherwise.
-73-
<PAGE>
Section 12.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
---------------------------------------------
SUBORDINATION PROVISIONS. Each Holder by accepting a Subordinated Debt Security
- ------------------------
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Subordinated Debt Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
------------------------
Section 13.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
----------------------------------------------------
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company or the Trustee shall bind its
respective successors and assigns, whether so expressed or not.
Section 13.02. ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR
------------------------------------------------
COMPANY VALID. Any act or proceeding by any provision of this Indenture
- -------------
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any Successor Company.
Section 13.03. REQUIRED NOTICES OR DEMANDS. Any notice or
---------------------------
communication by the Company, or the Trustee to the others is duly given if in
writing and delivered in Person or mailed by registered or certified mail
(return receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the other's address:
If to the Company:
Barrett Resources Corporation
1515 Arapahoe Street, Tower 3, Suite 1000
Denver, CO 80202
Attention: General Counsel
If to the Trustee:
Bankers Trust Company
Corporate Trust and Agency Group
4 Albany Street
New York, New York 10006
Attention: Corporate Market Services
The Company, or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
-74-
<PAGE>
All notices and communications shall be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; on the first Business Day on or after being sent, if telecopied and the
sender receives confirmation of successful transmission; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice required or permitted to a Registered Holder by the Company or
the Trustee pursuant to the provisions of this Indenture shall be deemed to be
properly mailed by being deposited postage prepaid in a post office letter box
in the United States addressed to such Holder at the address of such Holder as
shown on the Debt Security Register. Any report pursuant to Section 313 of the
TIA shall be transmitted in compliance with subsection (c) therein.
Any notice required or permitted to a Bearer Holder by the Company or the
Trustee pursuant to this Indenture shall be deemed to be properly given if
published on two separate business days in an Authorized Newspaper or Newspapers
in such Place or Places of Payment specified pursuant to Section 2.03, the first
such publication to be not earlier than the earliest date and not later than two
business days prior to the latest date prescribed for the giving of such notice.
Notwithstanding the foregoing, any notice to Holders of Floating Rate Debt
Securities regarding the determination of a periodic rate of interest, if such
notice is required pursuant to Section 2.03, shall be sufficiently given if
given in the manner specified pursuant to Section 2.03.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspaper or by
reason of any other cause it shall be impracticable to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in it
or any defect in any notice by publication as to a Holder shall not affect the
sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
Section 13.04. INDENTURE AND DEBT SECURITIES TO BE CONSTRUED IN
------------------------------------------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. This Indenture, each Debt
- -------------------------------------------------
Security and each Coupon shall be deemed to be New York contracts, and for all
purposes shall be construed in accordance with the laws of said State (without
reference to principles of conflicts of law).
Section 13.05. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO BE
--------------------------------------------------
FURNISHED UPON APPLICATION OR DEMAND BY THE COMPANY. Upon any application or
- ---------------------------------------------------
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent 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 have been complied with, except
-75-
<PAGE>
that in the case of any such application or demand as to which the furnishing of
such document is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or
opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (a) a statement that the Person making such
certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 13.06. PAYMENTS DUE ON LEGAL HOLIDAYS. In any case where the
------------------------------
date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, 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 date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date. If a record date
is not a business day, the record date shall not be affected.
Section 13.07. PROVISIONS REQUIRED BY TIA TO CONTROL. If and to the
-------------------------------------
extent that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to be included in
this Indenture by any of Sections 310 to 318, inclusive, of the TIA, such
required provision shall control.
Section 13.08. COMPUTATION OF INTEREST ON DEBT SECURITIES. Interest,
------------------------------------------
if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
Section 13.09. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
--------------------------------------------
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their functions.
Section 13.10. NO RECOURSE AGAINST OTHERS. An incorporator or any
--------------------------
past, present or future director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the Company
under the Debt Securities, the Coupons or this Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Debt Security or Coupon, each Holder shall waive and release all
such liability. The waiver and release shall be part of the consideration for
the issue of the Debt Securities and Coupons.
-76-
<PAGE>
Section 13.11. SEVERABILITY. In case any provision in this Indenture,
------------
the Debt Securities or the Coupons shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 13.12. EFFECT OF HEADINGS. The article and section headings
------------------
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 13.13. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
-----------------------------------------
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms and
conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly signed as of the date first written above.
BARRETT RESOURCES CORPORATION
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
BANKERS TRUST COMPANY, as Trustee
By:
------------------------------
Name: [SIGNATORY NAME]
Title: [SIGNATORY TITLE]
-77-
<PAGE>
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in thousands)
<TABLE>
<CAPTION>
YEARS ENDING DECEMBER 31,
--------------------------------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Net pre-tax income 21,043 16,437 (406) 44,488 47,186
Fixed charges:
Interest expense, including debt issue amortization 725 942 4,631 3,684 13,243
Capitalized Interest -- 118 403 8 --
Interest portion of rent expenses 368 401 446 462 492
------ ------ ----- ------ ------
TOTAL FIXED CHARGES 1,093 1,461 5,480 4,154 13,735
Less: Capitalized Interest, net -- (118) (403) (8) --
------ ------ ----- ------ ------
1,093 1,343 5,077 4,146 13,735
Earnings Before Fixed Charges 22,136 17,780 4,671 48,634 60,921
RATIO OF EARNINGS TO FIXED CHARGES 20.25 12.17 0.85 11.71 4.44
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the use of our
report dated March 9, 1998 in this Registration Statement (Form S-3) and related
Prospectus of Barrett Resources Corporation for the registration of $500,000,000
principal amount of its Securities and to all references to our Firm included in
this Registration Statement.
We also consent to the incorporation by reference therein of our report
with respect to the financial statement schedules of Barrett Resources
Corporation for the years ended December 31, 1997, 1996 and 1995 included in the
Annual Report (Form 10-K) for 1997 incorporated by reference.
ARTHUR ANDERSEN LLP
Denver, Colorado
May 6, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF RYDER SCOTT COMPANY
We hereby consent to the references to Ryder Scott Company Petroleum
Engineers as experts in the field of petroleum engineering in the Registration
Statement (Form S-3) and related prospectus of Barrett Resources Corporation
dated May 6, 1998.
Very truly yours,
/s/ Ryder Scott Company Petroleum Engineers
RYDER SCOTT COMPANY PETROLEUM ENGINEERS
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
We hereby consent to the references to Netherland, Sewell & Associates,
Inc. as experts in the field of petroleum engineering in the Registration
Statement (Form S-3) and related prospectus of Barrett Resources Corporation
dated May 6, 1998 and to all references to our Firm included in this
Registration Statement.
NETHERLAND, SEWELL & ASSOCIATES, INC.
By: /s/ Clarence M. Netherland
--------------------------------
Clarence M. Netherland
Chairman
Dallas, Texas
May 5, 1998
<PAGE>
Exhibit 25.1
- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2)
-----------
--------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
--------------------
BARRETT RESOURCES CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 84-0832476
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
1515 Arapahoe Street, Tower 3, Suite 1000
Denver, Colorado 80202
(Address of principal executive offices)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers. Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of Amendment
of the Organization Certificate of Bankers Trust
Company dated June 21, 1995 - Incorporated herein by
reference to Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171, Certificate of Amendment of
the Organization Certificate of Bankers Trust Company
dated March 20, 1996, incorporate by referenced to
Exhibit 1 filed with Form T-1 Statement, Registration
No. 333-25843 and Certificate of Amendment of the
Organization Certificate of Bankers Trust Company
dated June 19, 1997, copy attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended
on November 18, 1997. Copy attached.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference
to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust
Company dated as of December 31, 1997. Copy attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 16th day
of March, 1998.
BANKERS TRUST COMPANY
By: /s/ Jason Krasilovsky
---------------------
Jason Krasilovsky
Assistant Treasurer
-5-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the
Banking Law," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 27th day of June in the Year of our Lord
one thousand nine hundred and ninety-seven.
/s/ Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667)
shares with a par value of $10 each designated as Common Stock and 1000
shares with a par value of One Million Dollars ($1,000,000) each designated
as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
/s/ James T. Byrne, Jr.
----------------------------------
James T. Byrne, Jr.
Managing Director
/s/ Lea Lahtinen
----------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
/s/ Lea Lahtinen
----------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
/s/ Sandra L. West
- ------------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
Bankers Trust Company
New York
<PAGE>
BY-LAWS
of
Bankers Trust Company
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or re-
elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly
<PAGE>
meetings and during the intervals thereof shall meet at other times on call of
the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these By-
Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
<PAGE>
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit program and the adequacy
of the system of internal controls of the Company that should be brought to the
attention of the directors except those matters responsibility for which has
been vested in the General Credit Auditor. Should the General Auditor deem any
matter to be of special immediate importance, he shall report thereon forthwith
to the Audit Committee. The General Auditor shall report to the Chief Financial
Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer
<PAGE>
or the President, and (ii) only if and to the extent that, after making such
efforts as the Chairman of the Board, the Chief Executive Officer or the
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, _____________________________________, Assistant Secretary of Bankers Trust
Company, New York, New York, hereby certify that the foregoing is a complete,
true and correct copy of the By-Laws of Bankers Trust Company, and that the same
are in full force and effect at this date.
-------------------------------------
ASSISTANT SECRETARY
DATED:
------------------------------------
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/97
ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID:D CERT: 00623
Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400
--------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C>
ASSETS / / / / / / / / / / / / / / / / / / /
1. Cash and balances due from depository
institutions (from Schedule RC-A): / / / / / / / / / / / / / / / / / / /
a. Noninterest-bearing balances and
currency and coin (1) ........................ 0081 2,121,000 1.a.
b. Interest-bearing
balances (2) ................................. 0071 4,770,000 1.b.
2. Securities: / / / / / / / / / / / / / / / / / / /
a. Held-to-maturity securities
(from Schedule RC-B, column A) ............... 1754 0 2.a.
b. Available-for-sale securities
(from Schedule RC-B, column D)................ 1773 4,015,000 2.b.
3. Federal funds sold and securities
purchased under agreements to resell................ 1350 28,927,000 3.
4. Loans and lease financing receivables: / / / / / / / / / / / / / / / / / / /
a. Loans and leases, net of unearned
income (from Schedule RC-C) RCFD 2122 17,692,000 / / / / / / / / / / / / / / / / / / / 4.a.
b. LESS: Allowance for loan
and lease losses........................RCFD 3123 659,000 / / / / / / / / / / / / / / / / / / / 4.b.
c. LESS: Allocated transfer
risk reserve ...........................RCFD 3128 0 / / / / / / / / / / / / / / / / / / / 4.c.
d. Loans and leases, net of unearned income, / / / / / / / / / / / / / / / / / / /
allowance, and reserve (item 4.a minus
4.b and 4.c) ................................... 2125 17,033,000 4.d.
5. Trading Assets (from schedule RC-D) ................ 3545 45,488,000 5.
6. Premises and fixed assets
(including capitalized leases) ..................... 2145 766,000 6.
7. Other real estate owned (from
Schedule RC-M) ..................................... 2150 188,000 7.
8. Investments in unconsolidated
subsidiaries and associated
companies (from Schedule RC-M)...................... 2130 58,000 8.
9. Customers' liability to this bank
on acceptances outstanding ......................... 2155 633,000 9.
10. Intangible assets (from Schedule RC-M) ............... 2143 83,000 10.
11. Other assets (from Schedule RC-F) .................... 2160 5,957,000 11.
12. Total assets (sum of items 1 through 11) ............. 2170 110,039,000 12.
-----------------------------------------------
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/97
ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D
CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
<TABLE>
<CAPTION>
Schedule RC--Continued -----------------------------------------------
Dollar Amounts in Thousands / / / / / / / / Bil Mil Thou
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C>
LIABILITIES / / / / / / / / / / / / / / / / / /
13. Deposits: / / / / / / / / / / / / / / / / / /
a. In domestic offices (sum of totals of columns
A and C from Schedule RC-E, part I) RCON 2200 24,608,000
(1) Noninterest-bearing(1) ..............RCON 6631 2,856,000........ / / / / / / / / / / / / / / / / / /
(2) Interest-bearing ....................RCON 6636 21,752,000........ / / / / / / / / / / / / / / / / / /
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E / / / / / / / / / / / / / / / / / /
part II) RCFN 2200 20,529,000
(1) Noninterest-bearing .................RCFN 6631 2,122,000 / / / / / / / / / / / / / / / / / /
(2) Interest-bearing ....................RCFN 6636 18,407,000 / / / / / / / / / / / / / / / / / /
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 13,777,000
15. a. Demand notes issued to the U.S. Treasury ................................ RCON 2840 0
b. Trading liabilities (from Schedule RC-D)................................. RCFD 3548 24,968,000
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases): / / / / / / / / / / / / / / / / / /
a. With a remaining maturity of one year or less ........................... RCFD 2332 5,810,000
b. With a remaining maturity of more than one year through three years...... A547 4,702,000
c. With a remaining maturity of more than three years....................... A548 1,750,000
17. Not Applicable. / / / / / / / / / / / / / / / / / /
18. Bank's liability on acceptances executed and outstanding ................... RCFD 2920 633,000
19. Subordinated notes and debentures (2)....................................... RCFD 3200 1,307,000
20. Other liabilities (from Schedule RC-G) ..................................... RCFD 2930 5,961,000
21. Total liabilities (sum of items 13 through 20) ............................. RCFD 2948 104,045,000
22. Not Applicable / / / / / / / / / / / / / / / / / /
/ / / / / / / / / / / / / / / / / /
EQUITY CAPITAL / / / / / / / / / / / / / / / / / /
23. Perpetual preferred stock and related surplus .............................. RCFD 3838 1,000,000
24. Common stock ............................................................... RCFD 3230 1,352,000
25. Surplus (exclude all surplus related to preferred stock) ................... RCFD 3839 540,000
26. a. Undivided profits and capital reserves .................................. RCFD 3632 3,526,000
b. Net unrealized holding gains (losses) on available-for-sale securities .. RCFD 8434 (45,000)
27. Cumulative foreign currency translation adjustments ........................ RCFD 3284 (379,000)
28. Total equity capital (sum of items 23 through 27) .......................... RCFD 3210 5,994,000
29. Total liabilities and equity capital (sum of items 21 and 28)............... RCFD 3300 110,039,000
---------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
<S> <C> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best describes the Number
most comprehensive level of auditing work performed for the bank by independent external --------------
auditors as of any date during 1996...................................................... RCFD 6724 N/A
----------------------------
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards by
a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
Exhibit 99.1
January 21, 1998
Barrett Resources Corporation
1515 Arapahoe Street
Tower 3, Suite 1000
Denver, Colorado 80202
Gentlemen:
Pursuant to your request, we have reviewed your estimates of the net
proved reserves attributable to the interests of Barrett Resources Corporation
(referred to herein as the "Company") as of December 31, 1997. This review
consisted of approximately 3200 wells, and reserves attributed to certain behind
pipe zones and undeveloped locations, which were evaluated by the reservoir
engineering staff of Barrett Resources Corporation. The subject properties are
located in the States of Arkansas, Colorado, Kansas, Louisiana, Montana, New
Mexico, Nevada, North Dakota, Oklahoma, Texas, Utah and Wyoming and the federal
waters offshore Louisiana. Based on your reserve estimates, the proved net
reserves as of December 31, 1997 are presented below.
Reviewed
Proved Net Reserves
Prepared by Barrett Resources Corporation
As of December 31, 1997
-----------------------------------------
Liquid, MBBLS Gas, MMCF
------------- ---------
Developed 10,751 553,787
Undeveloped 7,901 297,457
------ -------
Total Proved 18,652 851,244
In general, it is our opinion that the methods and techniques used in
preparing your report are in accordance with generally accepted procedures for
the determination of reserves. Further, in our judgement, there was no evidence
of bias in the application of the methods and techniques for estimating proved
reserves, and that the total proved net reserves estimated would be within 10
percent of those estimated by Ryder Scott Company. However, on a well by well
comparison, differences of greater than 10 percent may exist.
Total proved developed reserves in the Grand Valley-Rulison Field Area,
Garfield County, Colorado and the North Waltman Area in Natrona County, Wyoming
have established significant proved undeveloped reserves. Because of the direct
relationship between quantities of proved undeveloped reserves
<PAGE>
and development plans, we have included in the proved undeveloped category only
reserves assigned to undeveloped locations that we have been assured will
definitely be drilled. As with all
<PAGE>
Barrett Resources Corporation
January 21, 1998
Page 3
reserves estimates, future development and performance data, as well as changes
in the market prices of oil, condensate and gas may necessitate significant
revisions in the estimates of reserves prepared at a future date for these wells
and undeveloped locations.
The proved reserves presented in your report comply with the Securities
and Exchange Commission's Regulation S-X Part 210.4-10(a) as clarified by the
Commission's Staff Accounting Bulletin No. 40, and are based on the following
definitions and criteria:
Proved reserves of crude oil, condensate, natural gas, or natural gas
---------------
liquids are estimated quantities that geological and engineering data
demonstrate with reasonable certainty to be recoverable in the future from
known reservoirs under existing conditions. Reservoirs are considered
proved if economic producibility is supported by actual production or
formation tests. In certain instances, proved reserves may be assigned on
the basis of a combination of core analysis and electrical and other type
logs which indicate the reservoirs are analogous to reservoirs in the same
field which are producing or have demonstrated the ability to produce on a
formation test. The area of a reservoir considered proved includes (1)
that portion delineated by drilling and defined by fluid contacts, if any,
and (2) the adjoining portions not yet drilled that can be reasonably
judged as economically productive on the basis of available geological and
engineering data. In the absence of data on fluid contacts, the lowest
known structural occurrence of hydrocarbons controls the lower proved limit
of the reservoir. Proved reserves are estimates of hydrocarbons to be
recovered from a given date forward. They may be revised as hydrocarbons
are produced and additional data become available. Proved natural gas
reserves consist of non-associated, associated and dissolved gas. An
appropriate reduction in gas reserves has been made for the expected
removal of natural gas liquids, for lease and plant fuel, and for the
exclusion of non-hydrocarbon gases if they occur in significant quantities
and are removed prior to sale. Reserves that can be produced economically
through the application of established improved recovery techniques are
included in the proved classification when these qualifications are met:
(1) successful testing by a pilot project or the operation of an installed
program in that reservoir or one in the immediate area with similar rock
and fluid properties provides support for the engineering analysis on which
the project or program was based, and (2) it is reasonably certain the
project will proceed. Reserves to be recovered by improved recovery
techniques that have yet to be established through repeated economically
successful applications are included in the proved category only after
successful testing by a pilot project or after the operation of an
installed program in the reservoir provides support for the engineering
analysis on which the project or program was based. Improved recovery
includes all methods for supplementing natural reservoir forces and energy,
or otherwise increasing ultimate recovery from a reservoir, including (1)
pressure maintenance, (2) cycling, and (3) secondary recovery in its
original sense. Improved recovery also includes the enhanced recovery
methods of thermal, chemical flooding, and the use
<PAGE>
Barrett Resources Corporation
January 21, 1998
Page 4
of miscible and immiscible displacement fluids. Estimates of proved reserves do
not include crude oil, condensate, natural gas, or natural gas liquids being
held in underground storage. Depending on the status of development, these
proved reserves are further subdivided into:
(i) "developed reserves" which are those proved reserves reasonably
expected to be recovered through existing wells with existing equipment
and operating methods, including (a) "developed producing reserves"
which are those proved developed reserves reasonably expected to be
produced from existing completion intervals now open for production in
existing wells, and (b) "developed non-producing reserves" which are
those proved developed reserves which exist behind the casing of
existing wells which are reasonably expected to be produced through
these wells in the predictable future where the cost of making such
hydrocarbons available for production should be relatively small
compared to the cost of a new well; and
(ii) "undeveloped reserves" which are those proved reserves reasonably
expected to be recovered from new wells on undrilled acreage, from
existing wells where a relatively large expenditure is required and from
acreage for which an application of fluid injection or other improved
recovery technique is contemplated where the technique has been proved
effective by actual tests in the area in the same reservoir or one with
similar rock and fluid properties. Reserves from undrilled acreage are
limited to those drilling units offsetting productive units that are
reasonably certain of production when drilled. Proved reserves for
other undrilled units are included only where it can be demonstrated
with reasonable certainty that there is continuity of production from
the existing productive formation.
The Company has interests in certain tracts which have substantial
additional hydrocarbon quantities which cannot be classified as proved and
consequently are not included herein. The Company has active exploratory and
development drilling programs which in all likelihood will result in the
reclassification of significant additional quantities to the proved category.
Our reserve estimates are based upon a detailed study of the properties
in which the Company has interests; however, we have not made any field
examination of the properties. The Company informed us that it has furnished us
all of the accounts, records, production data, geological and engineering data
and reports and other data as were required for our investigation. The
ownership interests, prices, lease operating and developing costs, and other
factual data furnished to us in connection with our investigation were accepted
as represented.
<PAGE>
Barrett Resources Corporation
January 21, 1998
Page 5
Neither Ryder Scott Company nor any of its employees has any interest in
the subject properties and neither the employment to make this study nor the
compensation is contingent on our estimates of reserves and future cash inflows
for the subject properties.
Very truly yours,
RYDER SCOTT COMPANY
PETROLEUM ENGINEERS
/s/ Gary Krieger
Gary Krieger, P. E.
Vice President
GK:ph
