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As filed with the Securities and Exchange Commission on May 26, 1999
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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AMERADA HESS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 13-4921002
(Jurisdiction of Incorporation) (IRS Employer Identification No.)
1185 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 997-8500
(Address of principal executive offices, including postal code, and
telephone number, including area code)
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J. BARCLAY COLLINS II
AMERADA HESS CORPORATION
1185 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 997-8500
(Name, address, including postal code, and telephone number, including
area code, of agent for service)
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Copies to:
MARK L. WEISSLER CHARLES S. WHITMAN, III, ESQ.
MILBANK, TWEED, HADLEY & MCCLOY LLP DAVIS POLK & WARDWELL
1 CHASE MANHATTAN PLAZA 450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10005 NEW YORK, NEW YORK 10017
(212) 530-5446 (212) 450-4000
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are 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
<TABLE>
<CAPTION>
===========================================================================================================
Amount Proposed Maximum Proposed Maximum
Title of Securities to be Aggregate Price Aggregate Amount of
to be Registered Registered Per Unit* Offering Price* Registration Fee
===========================================================================================================
<S> <C> <C> <C> <C>
Debt Securities $1,500,000,000 100% $1,500,000,000 $417,000
===========================================================================================================
</TABLE>
* Estimated solely for the purpose of determining the registration fee.
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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 this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE AMENDED. WE CANNOT
SELL THESE DEBT SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE DEBT SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE DEBT
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to Completion Dated May 26, 1999
PROSPECTUS
AMERADA HESS CORPORATION
$1,500,000,000
DEBT SECURITIES
We will provide specific terms of these debt securities in supplements
to this prospectus. You should read this prospectus and any prospectus
supplement carefully before you invest.
We may list the debt securities on the New York Stock Exchange.
This prospectus may not be used to sell debt securities unless
accompanied by a prospectus supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS ____________, 1999.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the SEC using a shelf registration process. Under this shelf process, we may
sell any combination of the debt securities described in this prospectus in one
or more offerings up to a total dollar amount of $1,500,000,000. This prospectus
describes generally the debt securities we may offer. Each time we sell debt
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference rooms in Washington,
D.C. and New York, New York. Please call the SEC at (800) SEC-0330 for further
information on the public reference rooms.
The SEC allows us to incorporate by reference the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we make with the
SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 until we sell all of the debt securities:
- Annual Report on Form 10-K for the year ended December 31,
1998;
- Quarterly Report on Form 10-Q for the quarter ended March 31,
1999; and
- Proxy Statement dated March 29, 1999.
You may request a copy of these filings at no cost by writing or
telephoning us at our principal executive offices at the following address and
phone number:
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
Attention: Corporate Secretary
(212) 997-8500
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these debt securities in any state where the offer is prohibited. You
should not assume that the information in this prospectus or any prospectus
supplement is accurate as of any date other than the date on the front of these
documents.
We have filed exhibits with this registration statement that include
the form of proposed underwriting agreement and indenture. You should read the
exhibits carefully for provisions that may be important to you.
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AMERADA HESS CORPORATION
We are a Delaware corporation that, together with our subsidiaries,
explores for, produces, purchases, transports and sells crude oil and natural
gas. We do this mainly in the United States, United Kingdom, Norway and Gabon,
and also in Azerbaijan, Brazil, Denmark, Indonesia, Thailand and other parts of
the world. We also manufacture, purchase, transport and market refined petroleum
products. We own 50% of a refinery joint venture in the United States Virgin
Islands, as well as another refining facility, terminals and retail outlets
located mainly on the East Coast of the United States.
Our principal executive offices are located at 1185 Avenue of the
Americas, New York, NY 10036, and our telephone number is (212) 997-8500.
All references to "us", "we", "our" and "ours" in this prospectus
include Amerada Hess Corporation and its subsidiaries, unless the context
requires otherwise.
USE OF PROCEEDS
We will use the net proceeds from the sale of the debt securities for
general corporate purposes including repayment and refinancing of debt. The
amount and timing of the sales of debt securities will depend on market
conditions and the availability of other funds to us.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges shows the coverage of earnings
before income taxes to fixed charges, which consist primarily of interest
expense. Our ratio of earnings to fixed charges for each of the periods ended is
as follows:
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEARS ENDED DECEMBER 31,
----------------------------------------------------------------------------------
1999 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
2.7 (a) 1.6 5.9 (b) 1.9
</TABLE>
- ---------
(a) Losses, including special items, and fixed charges resulted in a
less than one-to-one earnings coverage ratio. In 1998, the deficiency was $480
million. Losses reflected special items of $285 million including asset and
operating lease impairments of $237 million.
(b) Losses, including special items, and fixed charges resulted in a
less than one-to-one earnings coverage ratio. In 1995, the deficiency was $326
million. Losses reflected special items of $457 million including asset
impairments of $584 million, partially offset by gains on asset sales and a tax
refund.
To calculate the ratio of earning to fixed charges, we calculate
earnings by adding fixed charges other than capitalized interest to income
before income taxes. By fixed charges we mean total interest, including
capitalized interest, and a portion of rent expense that we believe represents
the interest factor of our rent expense. Earnings and fixed charges exclude our
share of earnings and fixed charges of our refinery joint venture in the United
States Virgin Islands.
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DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus will be our direct
unsecured obligations. The debt securities will be issued in one or more series
under an indenture between us and The Chase Manhattan Bank, as Trustee. The
indenture will be qualified under the Trust Indenture Act of 1939. The indenture
is governed by New York law.
This prospectus briefly outlines the main indenture provisions. The
indenture has been filed as an exhibit to the registration statement and you
should read the indenture for provisions that may be important to you.
GENERAL
The debt securities will rank equally with all of our other unsecured
and unsubordinated debt. The indenture does not limit the amount of debt we may
issue under the indenture or otherwise. We may issue the debt securities in one
or more series with the same or various maturities, at a price of 100% of their
principal amount or at a premium or a discount.
The prospectus supplement relating to any series of debt securities
being offered will include specific terms relating to the offering. These terms
will include some or all of the following:
- the title of the debt securities;
- the total principal amount of the debt securities;
- the percentage of the principal amount at which the debt
securities will be issued;
- the date or dates on which principal will be payable and
whether the debt securities will be payable on demand on any
date;
- the interest rate or rates and the method for calculating the
interest rate;
- the interest payment dates;
- the maturity dates;
- optional or mandatory redemption terms;
- any mandatory or sinking fund provisions;
- authorized denominations;
- the currency in which the debt securities will be denominated;
- whether the principal and any premium or interest is payable
in a different currency than the currency in which the debt
securities are denominated, including a currency other than
U.S. dollars;
- the manner in which any payments of principal and any premium
or interest will be calculated, if the payment will be based
on an index or formula;
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- whether the debt securities are to be issued as individual
certificates to each holder or in the form of global
securities held by a depositary on behalf of holders or in
uncertificated form;
- whether the debt securities will be issued as registered
securities or as bearer securities;
- information describing any book-entry features;
- whether and under what circumstances we will pay additional
amounts on any debt securities held by a person who is not a
United States person for tax purposes and whether we can
redeem the debt securities if we have to pay additional
amounts;
- provisions, other than those already in the indenture, that
allow for the discharge of our obligations under the
indenture; and
- any other terms.
We may issue debt securities of any series as registered securities or
bearer securities or both. In addition, we may issue uncertificated securities.
Unless we state otherwise in a prospectus supplement, we will not offer, sell or
deliver any bearer debt securities, including any bearer securities issued in
temporary or permanent global form, to any United States person. By "United
States person" we mean 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 of any of its political subdivisions, or an estate
or trust whose income is subject to United States federal income taxation
regardless of its source.
PAYMENT AND TRANSFER
We will normally issue the debt securities in book-entry only form,
which means that they will be represented by one or more permanent global
certificates registered in the name of The Depository Trust Company, New York,
New York ("DTC"), or its nominee. We will refer to this form here and in the
prospectus supplement as "book-entry only."
Alternatively, we may issue the debt securities in certificated form
registered in the name of the holder. Under these circumstances, holders may
receive certificates representing the debt securities. Debt securities in
certificated form will be issued only in increments of $1,000 and will be
exchangeable without charge except for reimbursement of taxes or other
governmental charges, if any. We will refer to this form in the prospectus
supplement as "certificated."
If we issue original issue discount debt securities, we will describe
the special United States federal income tax and other considerations of a
purchase of original issue discount debt securities in the prospectus
supplement. By "original issue discount debt securities," we mean securities
that are issued at a substantial discount below their principal amount because
they pay no interest or pay interest that is below market rates at the time of
issuance.
The following discussion pertains to debt securities that are issued in
book-entry only form.
One or more global securities would be issued to DTC or its nominee.
DTC would keep a computerized record of its participants (for example, your
broker) whose clients have purchased the debt securities. The participant would
then keep a record of its clients who purchased the debt securities. A global
security may not be transferred, except that DTC, its nominees and their
successors may transfer an entire global security to one another.
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Under book-entry only, we will not issue certificates to individual
holders of the debt securities. Beneficial interests in global securities will
be shown on, and transfers of global securities will be made only through,
records maintained by DTC and its participants.
DTC has provided us with the following information. DTC is:
- a limited-purpose trust company organized under the New York
Banking Law;
- a "banking organization" within the meaning of the New York
Banking Law;
- a member of the United States Federal Reserve System;
- a "clearing corporation" within the meaning of the New York
Uniform Commercial Code; and
- a "clearing agency" registered under Section 17a of the
Securities Exchange Act of 1934.
DTC holds securities that its participants deposit with DTC. DTC also
facilitates settlement among participants of securities transactions, such as
transfers and pledges, in deposited securities through computerized records for
participants' accounts. This eliminates the need to exchange certificates.
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
participant. The rules that apply to DTC and its participants are on file with
the SEC.
DTC is owned by a number of its participants and by The New York Stock
Exchange, Inc., The American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and
the Trustee will treat DTC's nominee as the owner of the global securities for
all purposes. Accordingly, we and the Trustee will have no direct responsibility
or liability to pay amounts due on the securities to owners of beneficial
interests in the global securities.
It is DTC's current practice, upon receipt of any payment of principal
or interest, to credit participants' accounts on the payment date according to
their respective holdings of beneficial interests in the global securities as
shown on DTC's records as of the record date for such payment. In addition, it
is DTC's current practice to assign any consenting or voting rights to
participants whose accounts are credited with securities on a record date, by
using an omnibus proxy. Payments by participants to owners of beneficial
interests in the global securities, and voting by participants, will be governed
by the customary practices between the participants and owners of beneficial
interests, as is the case with debt securities held for the account of customers
registered in "street name". However, these payments will be the responsibility
of the participants and not of DTC, the Trustee or us.
Debt securities represented by a global security would be exchangeable
for debt securities represented by certificates with the same terms in
authorized denominations only if:
- DTC notifies us that it is unwilling or unable to continue as
depository or if DTC ceases to be a clearing agency registered
under applicable law; or
- we instruct the Trustee that the global security is now
exchangeable; or
- an event of default has occurred and is continuing.
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COVENANTS
We have agreed to some restrictions on our activities for the benefit
of holders of the debt securities. The restrictive covenants summarized below
will apply (unless the covenants are waived or amended) so long as any of the
debt securities are outstanding unless the prospectus supplement states
otherwise. We have provided a Glossary at the end of this prospectus to define
capitalized terms used in the covenants. The prospectus supplement may contain
different covenants. In the covenants, all references to "us", "we", "our" and
"ours" means Amerada Hess Corporation only and not any of our subsidiaries.
Limitation on Secured Indebtedness. We have agreed that we will not,
and we will not permit any of our Restricted Subsidiaries to, create, assume,
incur or guarantee any Secured Indebtedness unless we secure these debt
securities to the same extent as the Secured Indebtedness. However, we may incur
Secured Indebtedness without securing these debt securities if, immediately
after incurring the Secured Indebtedness, the aggregate amount of all Secured
Indebtedness and the Attributable Debt payable under leases entered into in
connection with sale and leaseback transactions subject to the amount limitation
described below would not exceed 15% of Consolidated Net Tangible Assets. The
aggregate amount of all Secured Indebtedness in the preceding sentence excludes
Secured Indebtedness that is secured to the same extent as these debt securities
and Secured Indebtedness that is being repaid concurrently.
Limitation on Sale and Leaseback Transactions. We have agreed that we
will not, and we will not permit any of our Restricted Subsidiaries to, enter
into any lease longer than three years covering any Principal Property of ours
or of any of our Restricted Subsidiaries that is sold to any other person in
connection with the lease, unless immediately after consummation of the sale and
leaseback transaction either:
- the sum of the Attributable Debt and the aggregate amount of
all Secured Indebtedness, excluding Secured Indebtedness which
is secured to the same extent as these debt securities or that
is being repaid concurrently, does not exceed 15% of
Consolidated Net Tangible Assets; or
- an amount equal to the net proceeds received in connection
with such sale is used within 180 days to retire or redeem
indebtedness of ours or our Restricted Subsidiaries, the
proceeds are at least equal to the fair market value of the
property sold and the Trustee is informed of the transaction.
CONSOLIDATION, MERGER OR SALE
We have agreed not to consolidate with or merge into any other
corporation or convey or transfer substantially all of our properties and assets
to any person, unless:
- that person is a U.S. corporation; and
- the successor corporation expressly assumes by a supplemental
indenture the due and punctual payment of the principal of and
any premium or any interest on all the debt securities and the
performance of every covenant in the indenture that we would
otherwise have to perform.
MODIFICATION OF THE INDENTURE
Under the indenture, our rights and obligations and the rights of the
holders may be modified if the holders of a majority in aggregate principal
amount of the outstanding debt securities of all series voting as a single class
affected by the modification consent. However, no modification of the principal
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or interest payment terms, and no modification reducing the percentage required
for modifications, is effective against any holder without its consent.
EVENTS OF DEFAULT
When we use the term "Event of Default" in the indenture, here are some
examples of what we mean.
Unless otherwise specified in a prospectus supplement, an Event of
Default with respect to a series of debt securities occurs if:
- we fail to pay the principal of, or any premium on, any debt
security when due;
- we fail to pay interest when due on any debt security for 30
days;
- we fail to perform any other covenant in the indenture and
this failure continues for 60 days after we receive written
notice of it from the Trustee or from the holders of 25% in
principal amount of the outstanding debt securities of the
series;
- we default under any other loans or similar indebtedness in an
amount in excess of $50,000,000 and that default results in
the acceleration of the loan and the situation continues for a
period of 20 days after we receive written notice from the
Trustee or from holders of 25% of the principal amount of the
outstanding securities of such series; or
- we or a court take certain actions relating to the bankruptcy,
insolvency or reorganization of Amerada Hess Corporation for
the benefit of our creditors.
A supplemental indenture may include, or pursuant to a resolution from
our Board of Directors there may be added, additional Events of Default or
changes to the Events of Default described above with respect to a particular
series of debt securities. For the Events of Default applicable to a particular
series of debt securities, see the prospectus supplement relating to the series.
The Trustee may withhold notice to the holders of debt securities of
any default (except in the payment of principal or interest) if it considers
withholding of notice to be in the best interests of the holders. No notice of a
covenant default may be given until 30 days after the default occurs. By default
we mean any event which is an Event of Default described above or would become
an Event of Default with the giving of notice or the passage of time.
If a payment Event of Default for any series of debt securities occurs
and continues, the Trustee or the holders of at least 25% in aggregate principal
amount of the debt securities of the series may require us to repay immediately:
- the entire principal of the debt securities of the series or,
if the debt securities are original issue discount securities,
the portion of the principal described in the applicable
prospectus supplement; and
- all the accrued interest.
If the default results from a failure to perform a covenant or the acceleration
of other indebtedness, the Trustee or the holders of 25% in aggregate principal
amount of all debt securities may require the immediate payment of principal and
interest. If the default is in connection with an event of bankruptcy or similar
event, the principal and interest will become immediately due and payable.
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The holders of a majority of the principal amount of the debt
securities of the affected series can rescind this accelerated payment
requirement or waive any past default or Event of Default or allow us to not
comply with any indenture provision. However, rescission is not permitted if
there is a default in payment of principal of, or premium or interest on, any of
the debt securities of the series apart from the acceleration itself.
Other than its duties during a default, the Trustee is not obligated to
exercise any of its rights or powers under the indenture at the request, order
or direction of any holders, unless the holders offer the Trustee reasonable
indemnity. If they provide this indemnity, the holders of 25% of the principal
amount of any series of debt securities may, subject to limitations, direct the
time, method and place of conducting any proceeding or any remedy available to
the Trustee, or exercising any power conferred on the Trustee, for any series of
debt securities.
We are not required to provide the Trustee with any certificate or
other document saying that we are in compliance with the indenture or that there
are no defaults.
DEFEASANCE
When we use the term defeasance, we mean discharge from some or all of
our obligations under the indenture. Unless otherwise indicated in an applicable
prospectus supplement, if we deposit with the Trustee sufficient cash or
government securities to pay the principal, interest, any premium and any other
sums due to the stated maturity date or a redemption date of the debt securities
of a particular series, then we will either be discharged from any and all
obligations in respect of any series of debt securities or we will no longer be
under any obligation to comply with restrictive covenants under the indenture
and certain Events of Default will no longer apply to us.
If this happens, the holders of the debt securities of the affected
series will not be entitled to the benefits of the indenture except for
registration of transfer and exchange of debt securities and replacement of
lost, stolen or mutilated debt securities. These holders may look only to the
deposited funds or obligations for payment.
We must deliver to the Trustee a ruling by the United States Internal
Revenue Service or an opinion of counsel to the effect that the deposit and
related defeasance would not cause the holders of the debt securities to
recognize income, gain or loss for federal income tax purposes.
CONCERNING THE TRUSTEE
The Trustee has loaned money to us and provided other services to us in
the past and may do so in the future as a part of its regular business.
PLAN OF DISTRIBUTION
We may sell the offered debt securities through underwriters or
dealers, through agents or directly to one or more purchasers.
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SALE THROUGH UNDERWRITERS
If we use underwriters in the sale, they will acquire the debt
securities for their own account. The underwriters may resell the debt
securities 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 obligations of the underwriters to purchase the debt securities will be
subject to conditions. The underwriters will be obligated to purchase all the
debt securities of the series offered if any of the debt securities are
purchased. The underwriters from time to time may change any initial public
offering price and any discounts or concessions allowed or re-allowed or paid to
dealers.
SALE THROUGH AGENTS
We may sell offered debt securities through agents we designate. Unless
indicated in the prospectus supplement, the agents have agreed to use their
reasonable best efforts to solicit purchases for the period of their
appointment.
DIRECT SALES
We also may sell offered debt securities directly. In this case, no
underwriters or agents would be involved.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution
of the offered debt securities may be underwriters as defined in the Securities
Act of 1933. Any discount or commissions they receive from us and any profit
they receive on the resale of the offered debt securities may be treated as
underwriting discounts and commissions under the Securities Act. We will
identify any underwriters or agents, and describe their compensation, in a
prospectus supplement.
We may agree with the underwriters, dealers and agents to indemnify
them against civil liabilities, including liabilities under the Securities Act.
We may also agree to contribute to payments that the underwriters, dealers or
agents may be required to make. Underwriters, dealers and agents may engage in
transactions with, or perform services for, us or our subsidiaries in the
ordinary course of their businesses.
LEGAL OPINIONS
Milbank, Tweed, Hadley & McCloy LLP, New York City, will issue an
opinion about the legality of the offered debt securities for us. Davis Polk &
Wardwell, New York City, will issue such an opinion on behalf of any agent,
underwriter or dealer.
EXPERTS
The consolidated balance sheet of Amerada Hess Corporation as of
December 31, 1998 and 1997 and the statements of consolidated income, retained
earnings, changes in common stock and capital in excess of par value, cash flows
and comprehensive income for each of the three years in the period ended
December 31, 1998, incorporated by reference in this Form S-3, have been
incorporated into this prospectus in reliance on the report of Ernst & Young
LLP, independent auditors, given on the authority of that firm as experts in
accounting and auditing.
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GLOSSARY
We have used the following definitions in describing the restrictive
covenants that we have agreed to in the indenture. You can also find the precise
legal definitions of these terms in Section 1.01 of the indenture.
"Attributable Debt" means, when used in connection with a sale and
lease-back transaction referred to in the indenture, on the date upon which the
amount is to be determined, the product of
- the net proceeds from the sale and lease-back transaction
multiplied by
- a fraction, the numerator of which is the number of full years
of the term of the lease relating to the property involved in
that sale and lease-back transaction remaining on that date
and the denominator of which is the number of full years on
the term of that lease measured from the first day of the
term.
"Consolidated Net Tangible Assets" means our total assets and those of
our consolidated subsidiaries, less current liabilities and intangible assets.
"Principal Property" means any oil or gas producing property, onshore
or offshore, or any refining or manufacturing plant owned or leased under a
capital lease by us or any of our Restricted Subsidiaries, but does not include
any property that has been determined by a resolution of our board of directors
not to be of material importance to the business conducted by us and our
subsidiaries taken as a whole.
"Restricted Subsidiary" means any Subsidiary that owns or leases, under
a capital lease, any Principal Property.
"Secured Indebtedness" means indebtedness of ours or any Restricted
Subsidiary for borrowed money secured by any lien on (or in respect of any
conditional sale or other title retention agreement covering) any Principal
Property or the stock or indebtedness of a Restricted Subsidiary, but excluding
from such definition all indebtedness:
- secured by liens (or arising from conditional sale or other
title retention agreements) existing on the date of the
indenture;
- owing to us or any other Restricted Subsidiary;
- secured by liens on Principal Property or the stock or
indebtedness of Restricted Subsidiaries and existing at the
time of acquisition thereof;
- in connection with industrial development bond, pollution
control revenue bond or similar financings;
- secured by purchase money security interests;
- secured by liens existing at the time a corporation becomes a
Restricted Subsidiary;
- statutory liens, liens made in connection with bids and other
standard exempted liens;
- liens on oil and/or gas properties or other mineral interests
arising as a security in connection with conducting certain
business;
11
<PAGE> 13
- royalties and other payments to be paid out of production from
oil and/or gas properties or other mineral interests from the
proceeds from their sale; and
- constituting any replacement, extension or renewal of any such
indebtedness to the extent such indebtedness is not increased.
"Subsidiary" means, with respect to any person, any corporation,
association or other business entity of which more than 50% of the outstanding
voting equity is owned, directly or indirectly, by such person and one or more
other Subsidiaries of such person.
12
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........................................ $ 417,000
Printing and engraving expenses ........................................................... 50,000
Trustees fees.............................................................................. 10,000
Legal fees and expenses.................................................................... 100,000
Accounting fees and expenses............................................................... 25,000
Other expenses............................................................................. 18,000
----------
Total expenses.................................................................... $ 620,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Amerada Hess Corporation is a Delaware corporation subject to the
applicable provisions of the Delaware General Corporation Law (the "DGCL")
related to the limitation of director liability, indemnification of directors
and officers and insurance against director and officer liability maintained by
a corporation on behalf of directors and officers.
The DGCL permits a corporation's certificate of incorporation to
eliminate or limit the personal liability of a director to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a director
provided that the relevant provision does not eliminate or limit the liability
of a director (a) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) for
unlawful payment of a dividend or approval of an unlawful stock purchase or
redemption or (d) for any transaction from which the director derived an
improper personal benefit.
The DGCL permits a 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, whether civil, criminal, administrative or
investigative (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, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action suit or proceeding if
such person acted in good faith and in a manner such person 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
the relevant conduct was unlawful.
In any threatened, pending or completed action or suit by or in the
right of a corporation, the DGCL permits a corporation to indemnify any person
who was or is a party or is threatened
II-1
<PAGE> 15
to be made a party to any such action or suit by reason of the fact that such
person acted in any of the capacities set forth above against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action if such person acted in
good faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
may be made in respect of any claim or issue as to which such person shall have
been adjudged liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action was brought determines on
application that, despite the adjudication of liability but in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the Court of Chancery or such other court deems
proper.
The DGCL requires a corporation to indemnify a director or officer who
has been successful on the merits or otherwise in the defense of any action,
suit or proceeding referred to in the previous two paragraphs or in defense of
any claim, issue or matter therein against expenses actually and reasonably
incurred in connection therewith. Corporations may pay expenses incurred by an
officer or director in defending any proceeding in advance of the final
disposition of the matter on receipt of an undertaking by or on behalf of such
person to repay such amount if it is ultimately determined that the person is
not entitled to indemnity. The indemnification provided for by the DGCL is not
exclusive of any other rights to which the indemnified party may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or
otherwise.
Amerada Hess Corporation's Restated Certificate of Incorporation and
by-laws provide in effect for the indemnification by Amerada Hess Corporation of
each director and officer of Amerada Hess Corporation to the fullest extent
permitted by applicable law. The Underwriting Agreement in connection with the
offering of debt securities provides for the underwriters to indemnify Amerada
Hess Corporation and certain other persons including the directors against
certain liabilities.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER EXHIBIT
1 Form of Underwriting Agreement for Debt Securities
4 Form of Indenture
5 Opinion of Milbank, Tweed, Hadley & McCloy LLP
12 Statement re Computation of Ratios
23.1 Consent of Ernst & Young, LLP, Independent Auditors
23.2 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in Exhibit 5)
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended of The Chase Manhattan Bank, as trustee under the Indenture
II-2
<PAGE> 16
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 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.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the debt securities offered
therein, and the offering of such debt 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 debt securities being registered which remain unsold at the
termination of the offering.
(4) 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 and Exchange Act of
1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the debt
securities offered herein, and the offering of such debt 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 provisions described in Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
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 debt securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 17
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 NEW YORK, STATE OF NEW YORK, ON MAY 24, 1999.
AMERADA HESS CORPORATION
By /s/ John Y. Schreyer
------------------------------
(JOHN Y. SCHREYER)
EXECUTIVE VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED. EACH PERSON WHOSE SIGNATURE APPEARS BELOW
HEREBY AUTHORIZES EACH OF JOHN B. HESS, J. BARCLAY COLLINS II AND JOHN Y.
SCHREYER AS ATTORNEY-IN-FACT, TO SIGN IN HIS OR HER NAME AND BEHALF,
INDIVIDUALLY AND IN EACH CAPACITY DESIGNATED BELOW, AND TO FILE ANY AMENDMENTS,
INCLUDING POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT AND ANY
REGISTRATION STATEMENT FOR THE SAME OFFERING THAT IS TO BE EFFECTIVE UPON FILING
PURSUANT TO RULE 462(b) OF THE SECURITIES ACT OF 1933, AND TO FILE THE SAME,
WITH ALL EXHIBITS THERETO, AND ALL DOCUMENTS IN CONNECTION THEREWITH, WITH THE
SECURITIES AND EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEY-IN-FACT AND
AGENT, FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING
REQUISITE AND NECESSARY TO BE DONE IN AND ABOUT THE PREMISES, AS FULLY AND TO
ALL INTENTS AND PURPOSES AS HE OR SHE MIGHT OR COULD DO IN PERSON HEREBY
RATIFYING AND CONFIRMING ALL THAT THE SAID ATTORNEY-IN-FACT AND AGENT MAY
LAWFULLY DO OR CAUSE TO BE DONE BY VIRTUE HEREOF.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
Director, Chairman of
the Board and
Chief Executive Officer May 24, 1999
/s/ John B. Hess (Principal Executive Officer)
----------------------------------
(JOHN B. HESS)
/s/ W.S.H. Laidlaw Director, President and Chief
---------------------------------- Operating Officer May 24, 1999
(W.S.H. LAIDLAW)
---------------------------------- Director May 24, 1999
(NICHOLAS F. BRADY)
/s/ J. Barclay Collins II
---------------------------------- Director May 24, 1999
(J. BARCLAY COLLINS II)
/s/ Peter S. Hadley
---------------------------------- Director May 24, 1999
(PETER S. HADLEY)
</TABLE>
II-4
<PAGE> 18
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Edith E. Holiday
---------------------------------- Director May 24, 1999
(EDITH E. HOLIDAY)
/s/ William R. Johnson
---------------------------------- Director May 24, 1999
(WILLIAM R. JOHNSON)
/s/ Thomas H. Kean
---------------------------------- Director May 24, 1999
(THOMAS H. KEAN)
/s/ Frank A. Olson
---------------------------------- Director May 24, 1999
(FRANK A. OLSON)
/s/ Roger B. Oresman
---------------------------------- Director May 24, 1999
(ROGER B. ORESMAN)
Director, Executive Vice
President and
Chief Financial Officer May 24, 1999
(Principal Accounting and
/s/ John Y. Schreyer Financial Officer)
----------------------------------
(JOHN Y. SCHREYER)
/s/ William I. Spencer
---------------------------------- Director May 24, 1999
(WILLIAM I. SPENCER)
/s/ Robert N. Wilson
---------------------------------- Director May 24, 1999
(ROBERT N. WILSON)
/s/ Robert F. Wright
---------------------------------- Director May 24, 1999
(ROBERT F. WRIGHT)
</TABLE>
II-5
<PAGE> 19
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT
1 Form of Underwriting Agreement for Debt Securities
4 Form of Indenture
5 Opinion of Milbank, Tweed, Hadley & McCloy LLP
12 Statement re Computation of Ratios
23.1 Consent of Ernst & Young, LLP, Independent Auditors
23.2 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in Exhibit 5)
25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939,
as amended of The Chase Manhattan Bank, as trustee under the Indenture
II-6
<PAGE> 1
EXHIBIT 1
AMERADA HESS
CORPORATION
DEBT SECURITIES
Underwriting Agreement
_____________, 1999
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
As Representative of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Amerada Hess Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representative (the
"Representative"), the principal amount of its debt securities identified in
Schedule I hereto (the "Securities"), to be issued under the indenture specified
in Schedule I hereto (the "Indenture") between the Company and the Trustee
identified in such Schedule (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representative", as used herein, shall each
be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on Form
S-3, relating to certain debt securities (the "Shelf Securities") to be issued
from time to time by the Company. The Company also has filed with, or proposes
to file with, the Commission pursuant to Rule 424 under the Securities Act a
prospectus supplement specifically relating to the Securities. The registration
statement as amended to the date of this Agreement is hereinafter referred to as
the "Registration Statement" and the related prospectus covering the Shelf
Securities
<PAGE> 2
in the form first used to confirm sales of the Securities is hereinafter
referred to as the "Basic Prospectus". The Basic Prospectus as supplemented by
the prospectus supplement specifically relating to the Securities in the form
first used to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". If the Company has filed an abbreviated registration statement
pursuant to Rule 462(b) under the Securities Act (the "Rule 462 Registration
Statement"), then any reference herein to the term "Registration Statement"
shall be deemed to include such Rule 462 Registration Statement. Any reference
in this Agreement to the Registration Statement, the Basic Prospectus, any
preliminary form of Prospectus (a "preliminary prospectus") previously filed
with the Commission pursuant to Rule 424 or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act which were filed under the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act") on or before the
date of this Agreement or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be deemed
to refer to and include any documents filed under the Exchange Act after the
date of this Agreement, or the date of the Basic Prospectus, any preliminary
prospectus or the Prospectus, as the case may be, which are deemed to be
incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities and
(ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representative, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), on the date and at the time and place set
forth in Schedule I hereto (or at such other time and place on the same or such
other date, not later than the fifth Business Day thereafter, as you and the
Company may agree in writing). As used herein, the term "Business Day" means
2
<PAGE> 3
any day other than a day on which banks are permitted or required to be closed
in New York City. The time and date of such payment and delivery with respect to
the Securities are referred to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Note") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The Global Note will be made available for inspection by the
Representative at the office of J.P. Morgan Securities Inc., at the address set
forth above, not later than 1:00 P.M., New York City time, on the Business Day
prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein;
3
<PAGE> 4
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the
Exchange Act, and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly in all material respects the consolidated
financial position of the Company and its consolidated subsidiaries as
of the dates indicated and the results of their operations and the
changes in their consolidated cash flows for the periods specified in
conformity with generally accepted accounting principles applied on a
consistent basis, and the supporting schedules included or incorporated
by reference in the Registration Statement present fairly in all
material respects the information required to be stated therein;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the Prospectus;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect
on the Company and its subsidiaries taken as a whole;
4
<PAGE> 5
(f) each of Amerada Hess Limited, Amerada Hess International
Limited and Hess Oil Virgin Islands Corp., (the "Significant
Subsidiaries") has been duly incorporated and is validly existing as a
corporation under the laws of its jurisdiction of incorporation, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as
a foreign corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; and all the outstanding shares
of capital stock of each Significant Subsidiary of the Company have
been duly authorized and validly issued, are fully-paid and
non-assessable, and (except in the case of foreign subsidiaries, for
directors' qualifying shares) are owned by the Company, directly or
indirectly, free and clear of all liens, encumbrances, security
interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
binding obligations of the Company entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized and upon
effectiveness of the Registration Statement will have been duly
qualified under the Trust Indenture Act and, when executed and
delivered by the Company and the Trustee, the Indenture will constitute
a valid and binding instrument; and the Securities and the Indenture
will conform in all material respects to the descriptions thereof in
the Prospectus;
(i) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them or any of their
respective properties is bound, except for violations and defaults
which individually and in the aggregate are not material to the Company
and its subsidiaries taken as a whole; the issue and sale of the
Securities and the performance by the Company of all its obligations
under the Securities, the Indenture and this Agreement and the
consummation by it of the transactions herein and therein
5
<PAGE> 6
contemplated will not (A) conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, except for such conflicts, breaches or
defaults as would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, or (B) result in any violation of
(i) the provisions of the Certificate of Incorporation or the By-Laws
of the Company or (ii) any applicable law or statute or any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties, except in the case of this clause (ii), for
violations that will not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(j) no consent, approval, authorization, order, license,
registration or qualification of or with any such court or governmental
agency or body is required on the part of the Company for the issue and
sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under
state securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Underwriters and except for those
which, if not obtained, will not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(k) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending against, or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
or any of their respective properties or to which the Company or any of
its subsidiaries is or may be a party or to which any property of the
Company or any of its subsidiaries is or may be subject which could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others; and
there are no statutes, regulations, contracts or other documents that
are required to be filed as an exhibit to the Registration Statement or
required to be described in the
6
<PAGE> 7
Registration Statement or the Prospectus which are not filed or
described as required;
(l) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act;
(m) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(n) there are no existing or, to the best knowledge of the
Company, threatened labor disputes with the employees of the Company or
any of its subsidiaries which are likely to have a material adverse
effect on the Company and its subsidiaries taken as a whole; and
(o) the Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the Prospectus pursuant to Rule 424 under the
Securities Act not later than the Commission's close of business on the
second Business Day following the date of determination of the offering
price of the Securities or, if applicable, such earlier time as may be
required by Rule 424(b);
(b) to furnish to you and counsel for the Underwriters, at the
expense of the Company, a signed copy of the Registration Statement (as
originally filed) and each amendment thereto, in each case including
7
<PAGE> 8
exhibits and documents incorporated by reference therein and, during
the period mentioned in paragraph (e) below, to furnish each of the
Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) and documents incorporated by reference
therein as you may reasonably request;
(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object;
(d) for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, to advise you
promptly, and to confirm such advice in writing, (i) when any amendment
to the Registration Statement shall have become effective, (ii) of any
request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the initiation or threatening of any proceeding for that purpose,
and (iv) of the receipt by the Company of any notification with respect
to any suspension of the qualification of the Securities for offer and
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its reasonable best efforts to
prevent the issuance of any such stop order or notification and, if
issued, to obtain as soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law
to be delivered in connection with sales by an Underwriter or dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements as to
material facts therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary so
that the statements as to material facts in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
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<PAGE> 9
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus will comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in effect
so long as reasonably required for distribution of the Securities;
provided that the Company shall not be required to file a general
consent to service of process in any jurisdiction, or become subject to
tax or to register as a foreign corporation in any jurisdiction in
which it is not now so registered;
(g) to make generally available to its security holders and to
you as soon as practicable an earnings statement which shall satisfy
the provisions of Section 11(a) of the Securities Act and Rule 158 of
the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158) of the
Registration Statement;
(h) so long as the Securities are outstanding, to furnish to
you copies of all reports or other communications (financial or other)
furnished generally to holders of Securities, and copies of any reports
and financial statements filed with the Commission or any national
securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are substantially
similar to the Securities; and
(j) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality of
the foregoing, all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters may
designate (including reasonable fees of counsel for the
9
<PAGE> 10
Underwriters and their disbursements), (iv) related to any filing with
the National Association of Securities Dealers, Inc., (v) in connection
with the printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and the
furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as herein
provided, (vi) payable to rating agencies in connection with the rating
of the Securities, (vii) any expenses incurred by the Company in
connection with a "road show" presentation to potential investors and
(viii) the cost and charges of any transfer agent.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing Date as
if made on and as of the Closing Date and the Company shall have
complied with all agreements and all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (ii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is
given in the Prospectus there shall not have been any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, management,
financial position, stockholders' equity or results of operations of
the Company and its
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<PAGE> 11
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the reasonable
judgment of the Representatives makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Securities
on the terms and in the manner contemplated in the Prospectus; and
neither the Company nor any of its Significant Subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus;
(e) you shall have received on and as of the Closing Date a
certificate of an executive officer of the Company, with specific
knowledge about the Company's financial matters, to the effect set
forth in subsections (a) through (c) (with respect to the respective
representations, warranties, agreements and conditions of the Company)
of this Section and to the further effect that there has not occurred
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, business,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries taken as a whole from
that set forth or contemplated in the Registration Statement.
(f) Milbank, Tweed, Hadley & McCloy LLP, counsel for the
Company, shall have furnished to you their written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect
that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of Delaware, with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Securities have been duly authorized,
executed and delivered by the Company and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the
11
<PAGE> 12
Company entitled to the benefits provided by the Indenture,
subject to customary exceptions;
(iv) the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and
binding instrument of the Company, subject to customary
exceptions; and the Indenture has been duly qualified under
the Trust Indenture Act;
(v) the issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the
consummation by it of the transactions herein and therein
contemplated will not result in any violation of the
provisions of the Certificate of Incorporation or the By-Laws
of the Company or any applicable law or statute;
(vi) no consent, approval, authorization, order,
license, registration or qualification of or with any
governmental agency or body is required for the issue and sale
by the Company of the Securities or the consummation by the
Company of the other transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, orders, licenses, registrations or
qualifications as have been obtained under the Securities Act
and the Trust Indenture Act and as may be required under state
securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriter;
(vii) the statements in the Prospectus under
"Description of Debt Securities" and in the Registration
Statement in Item 15, insofar as such statements constitute a
summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects
the information called for with respect to such legal matters,
documents or proceedings;
(viii) such counsel (A) does not believe that (except
for the financial statements included therein and the Form T-1
of the Trustee, as to which such counsel need express no
belief) any part of the Registration Statement (including the
documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, (B) is
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<PAGE> 13
of the opinion that the Registration Statement and the
Prospectus and any amendments and supplements thereto (except
for the financial statements included therein as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act
and the Trust Indenture Act and (C) does not believe that
(except for the financial statements included therein, and the
Form T-1 of the Trustee, as to which such counsel need express
no belief) the Registration Statement and the Prospectus, on
the date of this Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus as amended or
supplemented, if applicable, on the Closing Date contained any
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
(ix) the Company is not and, after giving effect to
the offering and sale of the Securities, will not be an
"investment company" or entity "controlled" by an "investment
company", as such terms are defined in the Investment Company
Act; and
(x) such counsel is of the opinion ascribed to it in
the Prospectus under the caption "Taxation".
(g) J. Barclay Collins, II, Esq., Executive Vice President and
General Counsel of the Company, shall have furnished to you his written
opinion, dated the Closing Date, in form and substance satisfactory to
you, to the effect that:
(i) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be
so qualified or in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole;
(ii) each of the Significant Subsidiaries has been
duly incorporated and is validly existing as a corporation
under the laws of its jurisdiction of incorporation with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus and has
been duly qualified as a
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<PAGE> 14
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the
failure to be so qualified and in good standing would not have
a material adverse effect on the Company and its subsidiaries
taken as a whole; and all of the issued shares of capital
stock of each subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and (except in
the case of foreign subsidiaries, for directors' qualifying
shares) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(iii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental investigations,
actions, suits or proceedings pending against or, to the best
of such counsel's knowledge, threatened against or affecting
the Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property of
the Company or its subsidiaries is or may be the subject which
could individually or in the aggregate reasonably be expected
to have a material adverse effect on the general affairs,
business, prospects, management, financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole; to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others; and such counsel does not know of any statutes,
regulations, contracts or other documents required to be filed
as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus
which are not filed or described as required;
(iv) neither the Company nor any of its Significant
Subsidiaries is, or with the giving of notice or lapse of time
or both would be, in violation of or in default under, its
Certificate of Incorporation or By-Laws (or similar
constitutive documents) or any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them or any
of their respective properties is bound, except for violations
and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole;
the issue and sale of the Securities and the
14
<PAGE> 15
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the
consummation by it of the transactions herein and therein
contemplated will not (A) conflict with or result in a breach
of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to
which the Company or any of the Significant Subsidiaries is a
party or by which the Company or any of the Significant
Subsidiaries is bound or to which any of the property or
assets of the Company or any of the Significant Subsidiaries
is subject, except for such conflicts, breaches or defaults as
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole, and (B) result in any
violation of (x) the provisions of the Certificate of
Incorporation or the By-Laws of the Company or (y) any
applicable law or statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction
over the Company, its subsidiaries or any of their respective
properties except, in the case of this clause (y), for
violations that would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(v) the statements in the Prospectus incorporated by
reference from Item 3 of Part 1 of the Company's Annual Report
on Form 10-K for the year ended December 31, 1998, insofar as
such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present
in all material respects the information called for with
respect to such legal matters, documents or proceedings; and
(vi) such counsel is of the opinion that each document
incorporated by reference in the Registration Statement and
the Prospectus as amended or supplemented (other than the
financial statements and related schedules therein, as to
which such counsel need express no opinion) complied as to
form when filed with the Commission in all material respects
with the Exchange Act and the rules and regulations of the
Commission thereunder.
In rendering such opinions, Milbank, Tweed, Hadley & McCloy LLP and Mr.
Collins may rely (A) as to matters involving the application of laws other than
the laws of the United States and the States of New York and Delaware, to the
extent such counsel deem proper and to the extent specified in such opinion, if
at all, upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably acceptable to
the
15
<PAGE> 16
Underwriters' counsel, familiar with the applicable laws; (B) as to matters
of fact, to the extent such counsel deem proper, on certificates of responsible
officers of the Company and certificates or other written statements of
officials of jurisdictions having custody of documents respecting the corporate
existence or good standing of the Company. The opinion of each such counsel
shall state that the opinion of any such other counsel upon which they relied is
in form satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect to the
matters to be covered in subparagraph (viii) of paragraph (f) above Milbank,
Tweed, Hadley & McCloy LLP may state their opinion and belief is based upon
their participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto (other than the documents
incorporated by reference therein) and review and discussion of the contents
thereof (including the documents incorporated by reference therein) but is
without independent check or verification except as specified.
The opinions of Milbank, Tweed, Hadley & McCloy LLP and Mr. Collins
described above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(h) on the date hereof and on the Closing Date, Ernst & Young
LLP shall have furnished to you letters, dated such date, in form and
substance satisfactory to you, containing statements and information of
the type customarily included in accountants "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus;
(i) you shall have received on and as of the Closing Date an
opinion of Davis Polk & Wardwell, counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as you
may reasonably request, and such counsel shall have received such
papers and information as they may reasonably request to enable them to
pass upon such matters; and
(j) on or prior to the Closing Date, the Company shall have
furnished to the Representative such further certificates and documents
as the Representative shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages and liabilities (including
without limitation the reasonable legal fees and other expenses incurred in
connection with any suit, action or proceeding or any claim asserted)
16
<PAGE> 17
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto and as used during the period specified in Section 5(d) hereof) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use therein and except
that with respect to any preliminary prospectus, such indemnity shall not inure
to the benefit of any Underwriter (or the benefit of any person controlling such
Underwriter) if the person asserting any such losses, claims, damages or
liabilities purchased the Securities that are the subject thereof from such
Underwriter and if such person was not sent or given a copy of the Prospectus at
or prior to confirmation of the sale of such Securities to such person in any
case where such sending or giving is required by the Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus was corrected in the Prospectus.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Representative expressly for use in
the Registration Statement, the Prospectus, any amendment or supplement thereto,
or any preliminary prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary, (ii)
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<PAGE> 18
the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named parties in
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by J.P. Morgan Securities Inc. and any such
separate firm for the Company, its directors, its officers who sign the
Registration Statement and such control persons of the Company or authorized
representatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by the
third sentence of this paragraph, the Indemnifying Person agrees that it shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after receipt
by such Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall,
without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is
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<PAGE> 19
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Securities (before
deducting expenses) received by the Company and the total underwriting discounts
and the commissions received by the Underwriters bear to the aggregate public
offering price of the Securities. The relative fault of the Company on the one
hand and the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
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<PAGE> 20
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representative, by notice given to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers, Inc.,
(ii) trading of any securities of or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Representative,
is material and adverse and which, in the judgment of the Representative, makes
it impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representative may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is more
than one-tenth of the aggregate principal amount of Securities to be purchased,
and arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company. In any such case either you or
20
<PAGE> 21
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein and
their respective successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. No purchaser of Securities
from any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be taken by the
Representative alone on behalf of the Underwriters, and any such action taken by
the Representative shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in Schedule
I hereto. Notices to the Company shall be given to it at 1185 Avenue of the
Americas, New York, New York 10036, Attention:_____________________.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
21
<PAGE> 22
____________________________________
Very truly yours,
AMERADA HESS CORPORATION
By:
Name:
Title:
Accepted: _____________, 1999
J.P. MORGAN SECURITIES INC.
By:
Name:
Title:
Acting severally on behalf of
itself and the several Underwriters
listed in Schedule II hereto.
22
<PAGE> 23
SCHEDULE I
Representative: J.P. Morgan Securities Inc.
Underwriting Agreement
dated: , 1999
Registration Statement No.: 33
Title of Securities:
Aggregate principal amount: $
Price to Public: __% of the principal amount of the
Securities, plus accrued interest, if
any, from __________, 19__ to the Closing
Date.
Indenture dated as of ____________
between the Company and Indenture: the
________________ as Trustee.
Maturity:
Interest Rate:
Interest Payment Dates:
Optional Redemption
Provisions:
Sinking Fund Provisions:
Other Provisions:
Closing Date and Time of
Delivery:
Closing Location:
Address for Notices to 60 Wall Street
Underwriters: New York, New York 10260-0060
Attention ___________________
23
<PAGE> 24
SCHEDULE II
<TABLE>
<CAPTION>
Principal Amount
of Securities
To Be Purchased
---------------
Name of Underwriter
- -------------------
<S> <C>
J.P. Morgan Securities Inc................................................ $_________
[Name].................................................................... _________
[Name]
----------
TOTAL............................................................ $
==========
</TABLE>
24
<PAGE> 1
EXHIBIT 4
================================================================================
AMERADA HESS CORPORATION
AS THE COMPANY
AND
THE CHASE MANHATTAN BANK
AS TRUSTEE
INDENTURE
DATED AS OF [DATE]
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C>
SECTION 1.01. Definitions......................................................................1
SECTION 1.02. Other Definitions................................................................7
SECTION 1.03. Incorporation by Reference of Trust Indenture Act................................7
SECTION 1.04. Rules of Construction............................................................8
ARTICLE 2 THE SECURITIES
SECTION 2.01. Form and Dating..................................................................8
SECTION 2.02. Execution and Authentication.....................................................9
SECTION 2.03. Amount Unlimited; Issuable in Series............................................10
SECTION 2.04. Denomination and Date of Securities; Payments of Interest.......................13
SECTION 2.05. Registrar and Paying Agent; Agents Generally....................................14
SECTION 2.06. Paying Agent to Hold Money in Trust.............................................14
SECTION 2.07. Transfer and Exchange...........................................................15
SECTION 2.08. Replacement Securities..........................................................18
SECTION 2.09. Outstanding Securities..........................................................19
SECTION 2.10. Temporary Securities............................................................19
SECTION 2.11. Cancellation....................................................................20
SECTION 2.12. CUSIP Numbers...................................................................20
SECTION 2.13. Defaulted Interest..............................................................20
SECTION 2.14. Series May Include Tranches.....................................................20
ARTICLE 3 REDEMPTION
SECTION 3.01. Applicability of Article........................................................23
SECTION 3.02. Notice of Redemption; Partial Redemptions.......................................23
SECTION 3.03. Payment of Securities Called for Redemption.....................................23
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption...................................................24
SECTION 3.05. Mandatory and Optional Sinking Funds............................................24
ARTICLE 4 COVENANTS
SECTION 4.01. Payment of Securities...........................................................27
SECTION 4.02. Maintenance of Office or Agency.................................................28
SECTION 4.03. Negative Pledge.................................................................29
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 4.04. Certain Sale and Lease-back Transactions........................................32
SECTION 4.05. Certificate to Trustee..........................................................33
SECTION 4.06. Reports by the Company..........................................................33
ARTICLE 5 SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc.....................................................33
SECTION 5.02. Successor Substituted...........................................................34
ARTICLE 6 DEFAULT AND REMEDIES
SECTION 6.01. Events of Default...............................................................34
SECTION 6.02. Acceleration....................................................................36
SECTION 6.03. Other Remedies..................................................................37
SECTION 6.04. Waiver of Past Defaults.........................................................38
SECTION 6.05. Control by Majority.............................................................38
SECTION 6.06. Limitation on Suits.............................................................38
SECTION 6.07. Rights of Holders to Receive Payment............................................39
SECTION 6.08. Collection Suit by Trustee......................................................39
SECTION 6.09. Trustee May File Proofs of Claim................................................39
SECTION 6.10. Application of Proceeds.........................................................40
SECTION 6.11. Restoration of Rights and Remedies..............................................41
SECTION 6.12. Undertaking for Costs...........................................................41
SECTION 6.13. Rights and Remedies Cumulative..................................................41
SECTION 6.14. Delay or Omission Not Waiver....................................................41
ARTICLE 7 TRUSTEE
SECTION 7.01. General.........................................................................42
SECTION 7.02. Certain Rights of Trustee.......................................................42
SECTION 7.03. Individual Rights of Trustee....................................................44
SECTION 7.04. Trustee's Disclaimer............................................................44
SECTION 7.05. Notice of Default...............................................................44
SECTION 7.06. Reports by Trustee to Holders...................................................45
SECTION 7.07. Compensation and Indemnity......................................................45
SECTION 7.08. Replacement of Trustee..........................................................46
SECTION 7.09. Successor Trustee by Merger, Etc................................................47
SECTION 7.10. Eligibility.....................................................................47
SECTION 7.11. Money Held in Trust.............................................................47
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
ARTICLE 8 DISCHARGE OF INDENTURE
<S> <C>
SECTION 8.01. Defeasance Within One Year of Payment...........................................48
SECTION 8.02. Defeasance......................................................................49
SECTION 8.03. Covenant Defeasance.............................................................50
SECTION 8.04. Application of Trust Money......................................................51
SECTION 8.05. Repayment to Company............................................................51
SECTION 8.06. Reinstatement...................................................................51
ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders......................................................52
SECTION 9.02. With Consent of Holders.........................................................52
SECTION 9.03. Revocation and Effect of Consent................................................54
SECTION 9.04. Notation on or Exchange of Securities...........................................54
SECTION 9.05. Trustee to Sign Amendments, Etc.................................................55
SECTION 9.06. Conformity with Trust Indenture Act.............................................55
ARTICLE 10 MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939....................................................55
SECTION 10.02. Notices........................................................................55
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.............................56
SECTION 10.04. Statements Required in Certificate or Opinion..................................57
SECTION 10.05. Evidence of Ownership..........................................................57
SECTION 10.06. Rules by Trustee, Paying Agent or Registrar....................................58
SECTION 10.07. Payment Date Other than a Business Day.........................................58
SECTION 10.08. Governing Law..................................................................58
SECTION 10.09. No Adverse Interpretation of Other Agreements..................................58
SECTION 10.10. Successors.....................................................................58
SECTION 10.11. Duplicate Originals............................................................58
SECTION 10.12. Separability...................................................................59
SECTION 10.13. Tables of Contents, Headings, Etc..............................................59
SECTION 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability...................................59
SECTION 10.15. Judgment Currency..............................................................59
</TABLE>
iii
<PAGE> 5
INDENTURE, dated as of [DATE], between AMERADA HESS CORPORATION, a
Delaware corporation, as the Company, and THE CHASE MANHATTAN BANK, a New York
banking corporation, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time of
its debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "SECURITIES") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration thereof, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders thereof, the Company and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time
of the Securities or of any and all series thereof and of the coupons, if any,
appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"AGENT" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"ATTRIBUTABLE DEBT" means, when used in connection with a sale and
lease-back transaction referred to in Section 4.04, on any date as of which the
amount thereof is to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a fraction, the numerator
of which is the number of full years of the term of the lease relating to the
property involved in such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining on the date of the making of
such computation and the denominator of which is the number of full years of the
term of such lease measured from the first day of such term.
<PAGE> 6
"AUTHORIZED NEWSPAPER" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and in the case of London, will, if practicable, be the Financial Times
(London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York or London,
as applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu thereof which is made or given with the
approval of the Trustee shall constitute a sufficient publication of such
notice.
"BOARD RESOLUTION" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by the
secretary or an assistant secretary to have been duly adopted and to be in full
force and effect on the date of certification, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day, other than a
Saturday or a Sunday, that is not a day on which banking institutions are
authorized or required by law or regulation to close, in the city (or in any of
the cities, if more than one) unless otherwise specified, in which amounts are
payable, as specified in the form of such Security or the city in which the
Corporate Trust Office is located.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMMON STOCK" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"COMPANY" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
2
<PAGE> 7
"CONSOLIDATED CURRENT LIABILITIES" means, with respect to any Person on
any date, all amounts which, in conformity with GAAP, would be classified as
current liabilities on a consolidated balance sheet of such Person and its
consolidated subsidiaries as at such date.
"CONSOLIDATED INTANGIBLES" means, with respect to any Person on any
date, all assets of such Person and its consolidated subsidiaries, determined on
a consolidated basis, that would, in conformity with GAAP, be classified as
intangible assets on a consolidated balance sheet of such Person and its
consolidated subsidiaries as at such date, including, without limitation,
unamortized debt discount and expense, unamortized organization and
reorganization expense, costs in excess of the fair market value of acquired
companies, patents, trade or service marks, franchises, trade names, goodwill
and the amount of all write-ups in the book value of assets resulting from any
revaluation thereof.
"CONSOLIDATED NET TANGIBLE ASSETS" means, with respect to any Person on
any date, the amount equal to (a) the amount that would, in conformity with
GAAP, be included as assets on the consolidated balance sheet of such Person and
its consolidated subsidiaries as at such date minus (b) the sum of (i)
Consolidated Intangibles of such Person at such date and (ii) Consolidated
Current Liabilities of such Person at such date.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at 450 West 33rd Street, New York, New York 10001.
"DEFAULT" means any Event of Default and any event that is, or after
notice or passage of time or both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "DEPOSITARY" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "DEPOSITARY" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of this instrument.
3
<PAGE> 8
"HOLDER" or "SECURITYHOLDER" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"INDENTURE" means this Indenture as originally executed or as it may be
amended or supplemented from time to time by one or more indentures supplemental
to this Indenture entered into pursuant to the applicable provisions of this
Indenture and shall include the forms and terms of the Securities of each series
established as contemplated pursuant to Sections 2.01 and 2.03.
"NON-U.S. PERSON" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"OFFICER" means, with respect to the Company, the chairman of the board
of directors, the president or chief executive officer, any vice president, the
chief financial officer, the treasurer or any assistant treasurer, or the
secretary or any assistant secretary.
"OFFICERS' CERTIFICATE" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president or chief
executive officer or a vice president and (ii) by the chief financial officer,
the treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 10.04 and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act and include
(except as otherwise expressly provided in this Indenture) the statements
provided in Section 10.04.
"OPINION OF COUNSEL" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the Trustee
and complying with Section 10.04. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements provided in Section
10.04, if and to the extent required thereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 6.02.
"PERIODIC OFFERING" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof
4
<PAGE> 9
and the redemption provisions, if any, with respect thereto, are to be
determined by the Company or its agents upon the issuance of such Securities.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"PRINCIPAL" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the Security.
"PRINCIPAL PROPERTY" means any oil or gas producing property, onshore
or offshore, or any refining or manufacturing plant owned or leased pursuant to
a capital lease by the Company or any Subsidiary, but shall not include any such
property that has been determined by Board Resolution not to be of material
importance to the business conducted by the Company and its subsidiaries, taken
as a whole, effective as of the date such Board Resolution is adopted.
"REGISTERED GLOBAL SECURITY" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.02, and bearing the legend prescribed in Section
2.02.
"REGISTERED SECURITY" means any Security registered on the Security
Register.
"RESPONSIBLE OFFICER" means, when used with respect to the Trustee, any
officer of the Trustee with direct responsibility for the administration of this
Indenture, or any other officer of the Trustee to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"RESTRICTED SUBSIDIARY" means any Subsidiary which owns or is a lessee
pursuant to a capital lease of any Principal Property.
"SECURITIES" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
5
<PAGE> 10
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"TRUSTEE" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"UNITED STATES BANKRUPTCY CODE" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"UNREGISTERED SECURITY" means any Security other than a Registered
Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
"VOTING STOCK" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"YIELD TO MATURITY" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent
6
<PAGE> 11
redetermination of interest on such series or on such Security, and calculated
in accordance with the constant interest method or such other accepted financial
practice as is specified in the terms of such Security.
SECTION 1.02. Other Definitions. Each of the following terms is defined
in the section set forth opposite such term:
TERM SECTION
Authenticating Agent 2.02
cash transaction 7.03
Dollars 4.02
Event of Default 6.01
Judgment Currency 10.15
mandatory sinking fund payment 3.05
optional sinking fund payment 3.05
Paying Agent 2.05
record date 2.04
Registrar 2.05
Required Currency 10.15
Security Register 2.05
self-liquidating paper 7.03
sinking fund payment date 3.05
Tranche 2.14
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Holder or a
Securityholder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee; and
"OBLIGOR" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute
7
<PAGE> 12
or defined by a rule of the Commission and not otherwise defined herein have the
meanings assigned to them therein.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(b) words in the singular include the plural, and words in the plural
include the singular;
(c) "HEREIN," "HEREOF" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(d) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(e) use of masculine, feminine or neuter pronouns should not be deemed
a limitation, and the use of any such pronouns should be construed to include,
where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions 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 imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or with
any rules of any securities exchange or usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of the
Securities. Any form of Security approved by or pursuant to a Board Resolution
must be acceptable as to form to the Trustee, such acceptance to be evidenced by
the Trustee's authentication of Securities in that form or a certificate signed
by a Responsible Officer of the Trustee and delivered to the Company. Unless
otherwise so established, Unregistered Securities shall have coupons attached.
8
<PAGE> 13
SECTION 2.02. Execution and Authentication. Two Officers shall execute
the Securities (other than coupons) for the Company by facsimile or manual
signature in the name and on behalf of the Company. The seal of the Company, if
any, shall be reproduced on the Securities. If an Officer whose signature is on
a Security no longer holds that office at the time the Security is
authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent acceptable to the Company (the "AUTHENTICATING AGENT") to
authenticate Securities (other than coupons). The Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
Authenticating Agent.
A Security (other than coupons) shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company to the Trustee for
authentication together with a written order of the Company to an authenticate
and deliver such Securities and the applicable documents referred to below in
this Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any
Securities of a series, the Trustee shall be entitled to receive prior to the
first authentication of any Securities of such series, and (subject to Article
7) shall be fully protected in relying upon, unless and until such documents
have been superseded or revoked:
(a) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and
terms of the Securities of that series were established;
(b) an Officers' Certificate setting forth the form or forms and terms
of the Securities, stating that the form or forms and terms of the Securities of
such series have been, or will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with this
Indenture; and
(c) an Opinion of Counsel substantially to the effect that the form or
forms and terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture and that the supplemental
indenture, to the extent applicable, and Securities have been duly authorized
and, if executed and authenticated in accordance with the provisions of this
Indenture and
9
<PAGE> 14
delivered to and duly paid for by the purchasers thereof on the date of such
opinion, would be entitled to the benefits of this Indenture and would be valid
and binding obligations of the Company, in each case enforceable against the
Company in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally and subject to the application of
general principles of equity (regardless of whether considered in a proceeding
in equity or at law), including without limitation (i) the possible
unavailability of specific performance, injunctive relief or any other equitable
remedy and (ii) concepts of materiality, reasonableness, good faith and fair
dealing.
The Trustee shall not be required to authenticate the Securities of any
series if the issue thereof will adversely affect the Trustee's own rights,
duties or immunities under the Securities or this Indenture.
If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series issued in
such form and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
its custodian or pursuant to such Depositary's instructions and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Company. There shall be established in or pursuant to a Board
Resolution or one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series, subject to the last sentence of this
Section 2.03,
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
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(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture and any
limitation on the ability of the Company to increase such aggregate principal
amount after the initial issuance of the Securities of that series (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities of the
series pursuant hereto);
(c) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
(d) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the
method by which such rate or rates or date or dates shall be determined;
(e) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served and notice to Holders may be
published;
(f) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption, 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 any of the terms
and conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
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(j) if other than the coin or currency in which the Securities of the
series are denominated, the coin or currency in which payment of the Principal
of or interest on the Securities of the series shall be payable or if the amount
of payments of Principal of and/or interest on the Securities of the series may
be determined with reference to an index based on a coin or currency other than
that in which the Securities of the series are denominated, the manner in which
such amounts shall be determined;
(k) if payment of the Principal of and interest on the Securities of
the series shall be payable in currency or currencies other than the currency of
the United States, the manner in which any such currency shall be valued against
other currencies in which any other Securities shall be payable;
(l) whether the Securities of the series or any portion thereof will
be issuable as Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities (with or
without coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided herein, the terms
upon which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(m) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by Non-U.S. persons in
respect of any tax, assessment or governmental charge withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities rather
than pay such additional amounts;
(n) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(o) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(p) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all Securities
of the series), which provisions may be in addition to, in substitution for, or
in modification of (or any combination of the foregoing) the provisions of
Article 8;
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(q) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary for
such Registered Global Security or Securities;
(r) any addition to or change in events of default or covenants with
respect to the Securities of the series; and
(s) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time and
unless otherwise provided, a series may be reopened, without the consent of any
Holder, for issuances of additional Securities of such series and such
Securities may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any such
indenture supplemental hereto and any forms and terms of Securities to be issued
from time to time may be completed and established from time to time prior to
the issuance thereof by procedures described in such Board Resolution or
supplemental indenture.
SECTION 2.04. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by Section
2.03.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The
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term "RECORD DATE" as used with respect to any interest payment date (except a
date for payment of defaulted interest) for the Securities of any series shall
mean the date specified as such in the terms of the Registered Securities of
such series established as contemplated by Section 2.03, or, if no such date is
so established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.05. Registrar and Paying Agent; Agents Generally. The Company
shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or for exchange (the "REGISTRAR") and an
office or agency where Securities may be presented for payment (the "PAYING
AGENT"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their registration, transfer and exchange (the "SECURITY
REGISTER"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such. The Company may remove any Registrar or Paying Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to
such Agent as evidenced by an appropriate agency agreement entered into by the
Company and such successor Agent and delivered to the Trustee or (ii) written
notification to the Trustee that the Trustee shall serve as such Agent until the
appointment of a successor Agent in accordance with clause (i) of this proviso.
The Company or any affiliate of the Company may act as Paying Agent or
Registrar; provided that neither the Company nor an affiliate of the Company
shall act as Paying Agent in connection with the defeasance of the Securities or
the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar and Paying
Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall
make available to the Trustee ten days prior to each interest payment date and
at such other times as the Trustee may reasonably request the names and
addresses of the Holders as they appear in the Security Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than 10:00
a.m. New York City time on each due date of any Principal or interest on any
Securities, the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay such Principal or interest. The
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Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee of any default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon doing so, the Paying Agent shall have
no further liability for the money so paid over to the Trustee. If the Company
or any affiliate of the Company acts as Paying Agent, it will, on or before each
due date of any Principal of or interest on any Securities, segregate and hold
in a separate trust fund for the benefit of the Holders thereof a sum of money
sufficient to pay such Principal or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in this
Indenture, and will promptly notify the Trustee in writing of its action or
failure to act as required by this Section.
SECTION 2.07. Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.05 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
4.02, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided. At the option of the Holder thereof, if Unregistered Securities of any
series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise established pursuant to
Section 2.03, such Unregistered Securities may be exchanged for Unregistered
Securities of such series and tenor
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having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with Section
4.02, with, in the case of Unregistered Securities that have coupons attached,
all unmatured coupons and all matured coupons in default thereto appertaining,
and upon payment, if the Company shall so require, of the charges hereinafter
provided. Registered Securities of any series may not be exchanged for
Unregistered Securities of such series. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder or his or her attorney duly
authorized in writing.
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver Registered Securities of such series
and tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of
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such Registered Global Securities, in exchange for such Registered Global
Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and deliver,
Registered Securities of such series and tenor in any authorized denominations,
in an aggregate principal amount equal to the principal amount of such
Registered Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form of
Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.07 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or
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such agent shall deliver such Securities to or as directed by the Persons in
whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of the
Company or the Trustee shall be required to exchange any Unregistered Security
for a Registered Security if such exchange would result in adverse Federal
income tax consequences to the Company (such as, for example, the inability of
the Company to deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws. The Trustee and any such agent
shall be entitled to rely on an Officers' Certificate or an Opinion of Counsel
in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of 15
days before a selection of such Securities to be redeemed or (ii) to register
the transfer of or exchange any Security selected for redemption in whole or in
part.
SECTION 2.08. Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security of
such series and tenor and principal amount bearing a number not
contemporaneously outstanding. If required by the Trustee or the Company, an
indemnity bond must be furnished that is sufficient in the judgment of both the
Trustee and the Company to protect the Company, the Trustee and any Agent from
any loss that any of them may suffer if a Security is replaced. The Company may
charge such Holder for its expenses and the expenses of the Trustee (including
without limitation attorneys' fees and expenses) in replacing a Security. In
case any such mutilated, defaced, lost, destroyed or wrongfully taken Security
has become or is about to become due and payable, the Company in its discretion
may pay such Security instead of issuing a new Security in replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
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SECTION 2.09. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and those described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds, or the Company holds in trust, on the maturity date or any
redemption date or date for repurchase of the Securities money sufficient to pay
Securities payable or to be redeemed or repurchased on such date, then on and
after such date such Securities shall cease to be outstanding and interest on
them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one
of its affiliates holds such Security, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities as to which a Responsible Officer of the Trustee has received written
notice to be so owned shall be so disregarded. Any Securities so owned which are
pledged by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate of the
Company, shall be deemed to be outstanding, if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act as owner with respect to
such Securities and that the pledgee is not the Company or an affiliate of the
Company.
SECTION 2.10. Temporary Securities. Until definitive Securities of any
series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities,
as evidenced by their execution of such temporary Securities. If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series and
tenor upon surrender of such temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.02, without charge to
the Holder. Upon
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surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of such
series and tenor and authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 2.11. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar, any transfer
agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel and dispose of all Securities surrendered for registration
of transfer, exchange, payment or cancellation in accordance with its customary
procedures unless the Company otherwise directs the Trustee in writing. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee shall
use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption
or exchange as a convenience to Holders and no representation shall be made as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or exchange.
SECTION 2.13. Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest (as may be specified in the terms thereof, established pursuant to
Section 2.03) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, whether or not such day is a Business
Day. At least 15 days before such special record date, the Company shall mail to
each Holder and to the Trustee a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "TRANCHE") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical
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terms, including authentication date and public offering price. Notwithstanding
any other provision of this Indenture, with respect to Sections 2.02 (other than
the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10, 3.01 through 3.05,
4.02, 6.01 through 6.14, 8.01 through 8.05 and 9.02, if any series of Securities
includes more than one tranche, all provisions of such sections applicable to
any series of Securities shall be deemed equally applicable to each tranche of
any series of Securities in the same manner as though originally designated a
series unless otherwise provided with respect to such series or tranche pursuant
to Section 2.03. In particular, and without limiting the scope of the next
preceding sentence, any of the provisions of such sections which provide for or
permit action to be taken with respect to a series of Securities shall also be
deemed to provide for and permit such action to be taken instead only with
respect to Securities of one or more tranches within that series (and such
provisions shall be deemed satisfied thereby), even if no comparable action is
taken with respect to Securities in the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of such series at their last addresses as they shall
appear upon the Security Register. Notice of redemption to the Holders of
Unregistered Securities of any series to be redeemed as a whole or in part who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part shall
be published in an Authorized Newspaper in The City of New York or with respect
to any Security the interest
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on which is based on the offered quotations in the interbank Eurodollar market
for dollar deposits in an Authorized Newspaper in London, in each case, once in
each of three successive calendar weeks, the first publication to be not less
than 30 days nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed or published in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the notice
to the Holder of any 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 Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with coupons attached thereto, of all coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall identify the Securities to be redeemed and 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 Security, a new
Security or Securities of such series and tenor in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
On or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least 15
days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be
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redeemed. In case of a redemption at the election of the Company prior to the
expiration of any restriction on such redemption, the Company shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such redemption is not
prohibited by such restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall, if requested in writing by the Company, promptly notify the
Company in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
SECTION 3.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after such
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to such date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured coupons, if any, appertaining thereto shall be void
and, except as provided in Sections 7.11 and 8.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit under
this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with all
coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for redemption shall be
payable, in the case of Securities with coupons attached thereto, to the Holders
of the coupons for such interest upon
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surrender thereof, and in the case of Registered Securities, to the Holders of
such Registered Securities registered as such on the relevant record date
subject to the terms and provisions of Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities of such series and tenor (with any unmatured coupons
attached), of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 3.05. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "MANDATORY SINKING FUND PAYMENT", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "OPTIONAL SINKING FUND
PAYMENT." The date on which a sinking fund payment is to be made is herein
referred to as the "SINKING FUND PAYMENT DATE."
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Company may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except through a mandatory sinking fund payment) by the
Company or
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receive credit for Securities of such series (not previously so credited)
theretofore purchased or otherwise acquired (except as aforesaid) by the Company
and delivered to the Trustee for cancellation pursuant to Section 2.11, (b)
receive credit for optional sinking fund payments (not previously so credited)
made pursuant to this Section, or (c) receive credit for Securities of such
series (not previously so credited) redeemed by the Company through any optional
sinking fund payment. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Company intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of Securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company, on
or before any such sixtieth day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or a lesser sum if the Company shall so request in writing with respect
to the Securities of any series), such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
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series at the sinking fund redemption price thereof together with accrued
interest thereon to the date fixed for redemption. If such amount shall be
$50,000 (or such lesser sum) or less and the Company makes no such request then
it shall be carried over until a sum in excess of $50,000 (or such lesser sum)
is available. The Trustee shall select, in the manner provided in Section 3.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Company) inform the Company of the serial
numbers of the Securities of such series (or portions thereof) so selected.
Securities shall be excluded from eligibility for redemption under this Section
if they are identified by registration and certificate number in an Officers'
Certificate delivered to the Trustee at least 60 days prior to the sinking fund
payment date as being owned of record and beneficially by, and not pledged or
hypothecated by either, (a) the Company or (b) an entity specifically identified
in such Officers' Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. The
Company (or the Trustee, if the Company shall so request the Trustee, in writing
in the name and at the expense of the Company), shall cause notice of redemption
of the Securities of such series to be given in substantially the manner
provided in Section 3.02 (and with the effect provided in Section 3.03) for the
redemption of Securities of such series in part at the option of the Company.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the Principal of, and interest on, the Securities of such series at
maturity.
On or before 10:00 a.m. New York City time on each sinking fund payment
date, the Company shall pay to the Trustee in cash or shall otherwise provide
for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. 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
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moneys thereafter paid into the sinking fund, shall, during the continuance of
such Default or Event of Default, be deemed to have been collected under Article
6 and held for the payment of all such Securities. In case such Event of Default
shall have been waived as provided in Section 6.04 or the Default cured on or
before the sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section to the redemption of such
Securities.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security so agree, payments of interest on, and any portion of the Principal of,
such Holder's Registered Security (other than interest payable at maturity or on
any redemption or repayment date or the final payment of Principal on such
Security) shall be made by the Paying Agent, upon receipt from the Company of
immediately available funds by 10:00 a.m., New York City time (or such other
time as may be agreed to between the Company and the Paying Agent), directly to
the Holder of such Security (by Federal funds wire transfer or otherwise) if the
Holder has delivered written instructions to the Trustee at least 15 days prior
to such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and in the
case of payments of Principal surrenders the same to the Trustee in exchange for
a Security or
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Securities aggregating the same principal amount as the unredeemed principal
amount of the Securities surrendered. The Trustee shall be entitled to rely on
the last instruction delivered by the Holder pursuant to this Section 4.01
unless a new instruction is delivered 15 days prior to a payment date. The
Company will indemnify and hold each of the Trustee and any Paying Agent
harmless against any loss, liability or expense (including attorneys' fees)
resulting from any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any payment in
accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York, as such office or
agency of the Company. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 10.02.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("DOLLARS") at each agency
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which
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are payable in Dollars may be made at an agency of the Company maintained in the
Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 4.03. Negative Pledge. (a) The Company will not, and will not
permit any Restricted Subsidiary to, create or incur any mortgage or pledge, as
security for any indebtedness for borrowed money, on or of any shares of stock
or indebtedness owing by a Restricted Subsidiary or any Principal Property of
the Company or a Restricted Subsidiary, whether such shares of stock or
indebtedness of a Restricted Subsidiary or Principal Property are owned at the
date of this Indenture or hereafter acquired, unless the Company secures or
causes such Restricted Subsidiary to secure the outstanding Securities equally
and ratably with all indebtedness secured by such mortgage or pledge, so long as
such indebtedness shall be so secured; provided, however, that this covenant
shall not apply in the case of:
(iii) the creation of any mortgage, pledge or other lien on any
shares of stock or indebtedness of a Subsidiary or any Principal
Property hereafter acquired (including acquisitions by way of merger or
consolidation) by the Company or a Restricted Subsidiary
contemporaneously with such acquisition, or within 360 days thereafter,
to secure or provide for the payment or financing of any part of the
purchase price thereof, or the assumption of any mortgage, pledge or
other lien upon any shares of stock or indebtedness of a Subsidiary or
any Principal Property hereafter acquired existing at the time of such
acquisition, or the acquisition of any shares of stock or indebtedness
of a Subsidiary or any Principal Property subject to any mortgage,
pledge or other lien without the assumption thereof, provided that
every such mortgage, pledge or lien referred to in this clause (i)
shall attach only to the shares of stock or indebtedness of a
Subsidiary or any Principal Property so acquired and improvements
thereon and accessions thereto;
(ii) any mortgage, pledge or other lien on any shares of stock
or indebtedness of a Subsidiary or any Principal Property existing at
the date of this Indenture;
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(iii) any mortgage, pledge or other lien on any shares of stock
or indebtedness of a Subsidiary or any Principal Property in favor of
the Company or any Restricted Subsidiary;
(iv) any mortgage, pledge or other lien existing on any
Principal Property prior to the acquisition thereof by the Company or
any of its Subsidiaries or existing on any Principal Property of any
Person that becomes a Restricted Subsidiary after the date hereof or on
its shares of stock or indebtedness at or prior to the time such Person
becomes a Restricted Subsidiary; provided that (x) such mortgage,
pledge or other lien is not created in contemplation of or in
connection with such acquisition or such Person becoming a Subsidiary,
(y) such mortgage, pledge or other lien shall not apply to any other
Principal Property of the Company or any of its Subsidiaries and (z)
such mortgage, pledge or other lien shall secure only those obligations
which it secures on the date of such acquisition or the date such
Person becomes a Restricted Subsidiary and improvements thereon and
accessions thereto;
(v) liens under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the repayment
of debt), or deposits to secure public or statutory obligations of the
Company or any Subsidiary, or deposits of cash or obligations of the
United States of America to secure surety and appeal bonds to which the
Company or any Subsidiary is a party or in lieu of such bonds, or
pledges or deposits for similar purposes in the ordinary course of
business, or liens on standard industry terms imposed by charter
parties or under contracts of affreightment, or margin posted to secure
payment or performance under futures, forwards or swap agreements, and
other obligations of a like nature, in each case in the ordinary course
of business, or liens imposed by law, such as laborers' or other
employees, carriers', warehousemen's, mechanics', materialmen's and
vendors' liens and liens arising out of judgments or awards against the
Company or any Subsidiary with respect to which the Company or such
Subsidiary at the time shall be prosecuting an appeal or proceedings
for review and with respect to which it shall have secured a stay of
execution pending such appeal or proceedings for review, or liens for
property taxes not yet subject to penalties for non-payment or the
amount or validity of which is being in good faith contested by
appropriate proceedings by the Company or any Subsidiary, as the case
may be, or minor survey exceptions, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real
properties, which liens, exceptions, encumbrances, easements,
reservations, rights and restrictions do not, in the opinion of the
Company, in the aggregate materially detract
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from the value of said properties or materially impair their use in the
operation of the business of the Company and its Subsidiaries;
(vi) liens on any oil and/or gas properties or other mineral
interests of the Company or any of its Subsidiaries, whether developed
or undeveloped, arising (x) as security for the Company or such
Subsidiary's costs and expenses incurred by it in connection with the
exploration, development or operation of such properties, in favor of a
person who is conducting the exploration, development or operation of
such properties, or (y) in connection with farmout, dry hole, bottom
hole, communitization, unitization, pooling and operating agreements
and/or other agreements of like general nature incident to the
acquisition, exploration, development and operation of such properties
or as required by regulatory agencies having jurisdiction in the
premises;
(vii) overriding royalties, royalties, production payments,
net profits interests or like interests to be paid out of production
from oil and/or gas properties or other mineral interests of the
Company or any of its Subsidiaries, or to be paid out of the proceeds
from the sale of any such production;
(viii) liens securing indebtedness in connection with any
industrial development bond financing, or pollution control revenue
bond financing, or similar financing transaction; and
(ix) any extension, renewal, or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
mortgage, pledge or other lien referred to in the foregoing clauses (i)
to (viii) inclusive; provided, however, that the principal amount of
debt secured thereby shall not exceed the principal amount of debt so
secured at the time of such extension, renewal or replacement, and that
such extension, renewal or replacement shall be limited to all or a
part of the property which secured the mortgage so extended, renewed or
replaced (plus improvements on and accessions to such property).
(b) Notwithstanding the foregoing provisions of this Section
4.03, the Company and any one or more Restricted Subsidiaries may
issue, assume or guarantee debt secured by mortgage, pledge or other
lien which would otherwise be subject to the foregoing restrictions in
an aggregate amount which, together with all other debt of the Company
and its Restricted Subsidiaries which (if originally issued, assumed or
guaranteed at such time) would otherwise be subject to the foregoing
restrictions and Attributable Debt in respect of sale and lease-back
arrangements not covered by 4.04(a), does not at the time exceed 15% of
Consolidated Net Tangible Assets.
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SECTION 4.04. Certain Sale and Lease-back Transactions. (a) The Company
will not, and will not permit any Restricted Subsidiary to, sell or transfer,
directly or indirectly, except to the Company or a Restricted Subsidiary, any
Principal Property as an entirety, and as part of the same transaction or series
of transactions take back a lease of such property, except a lease for a period
of three years or less; provided that, notwithstanding the foregoing, the
Company or any Restricted Subsidiary may sell any such Principal Property and
lease it back for a longer period (i) if the Company or such Restricted
Subsidiary would be entitled, pursuant to the provisions of Section 4.03(a), to
create a mortgage on the property to be leased securing indebtedness in an
amount equal to the Attributable Debt with respect to such sale and lease-back
transaction without equally and ratably securing the outstanding Securities or
(ii) if (A) the Company promptly informs the Trustee of such transaction, (B)
the proceeds of such transaction are at least equal to the fair value (as
determined by Board Resolution of the Company) of such property and (C) the
Company causes an amount equal to the net proceeds of the sale to be applied to
the retirement, within 180 days after receipt of such proceeds, of indebtedness
incurred or assumed by the Company or a Restricted Subsidiary (including the
Securities); provided further that, in lieu of applying all of or any part of
such net proceeds to such retirement, the Company may, within 75 days after such
sale, cancel or deliver or cause to be delivered to the applicable trustee for
cancellation either debentures or notes evidencing indebtedness of the Company
(which may include the Securities) or of a Restricted Subsidiary previously
issued or authenticated and delivered by the applicable trustee, and not
theretofore tendered for sinking fund purposes or called for a sinking fund or
otherwise applied as a credit against an obligation to redeem or retire such
notes or debentures, and an Officers' Certificate (which shall be delivered to
the Trustee and which need not contain the statements prescribed by Section
10.04) stating that the Company elects to deliver or cause to be delivered such
debentures or notes in lieu of retiring indebtedness as hereinabove provided. If
the Company shall cancel or so deliver debentures or notes to the applicable
trustee and the Company shall duly deliver such Officers' Certificate, the
amount of cash which the Company shall be required to apply to the retirement of
indebtedness under this Section 4.04(a) shall be reduced by an amount equal to
the aggregate of the then applicable optional redemption prices (not including
any optional sinking fund redemption prices) of such debentures or notes, or, if
there are no such redemption prices, the principal amount of such debentures or
notes; provided, that in the case of debentures or notes which provide for an
amount less than the principal amount thereof to be due and payable upon a
declaration of the maturity thereof, such amount of cash shall be reduced by the
amount of principal of such debentures or notes that would be due and payable as
of the date of such application upon a declaration of acceleration of the
maturity thereof pursuant to the terms of the indenture pursuant to which such
debentures or notes were issued.
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(b) Notwithstanding the provisions of paragraph (a) of this Section
4.04, the Company or any Restricted Subsidiary may enter into sale and
lease-back transactions in addition to those permitted by paragraph (a) of this
Section 4.04 without any obligation to retire any outstanding Securities or
other indebtedness, provided that at the time of entering into such sale and
lease-back transactions and after giving effect thereto, the Attributable Debt
in respect of such transactions, together with all other Attributable Debt in
respect of transactions subject to this Section 4.04 and not permitted by
paragraph (a) hereof and all other mortgages, pledges or other liens subject to
Section 4.03 and not permitted by paragraph (a) thereof, does not exceed in
aggregate 15% of Consolidated Net Tangible Assets.
SECTION 4.05. Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end of
its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture, (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture), which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.06. Reports by the Company. The Company covenants to file
with the Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the information,
documents, and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into
the Company unless:
(a) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or that acquired or leased such property and assets of the
Company shall be a corporation organized and validly existing under the laws of
the United States of America or any jurisdiction thereof and shall expressly
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assume, by a supplemental indenture, executed and delivered to the Trustee, all
of the obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an Opinion of
Counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company or such successor enforceable against such
entity in accordance with its terms, subject to customary exceptions; and
(b) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that at the time and immediately after giving effect
to such transaction, no Default shall have occurred and be continuing and an
Opinion of Counsel as to the matters set forth in Section 5.01(a).
SECTION 5.02. Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein and thereafter, except in the case of a lease, the Company
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "EVENT OF DEFAULT" shall occur with
respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at maturity, upon
acceleration or redemption, including as a sinking fund installment, or
otherwise;
(b) the Company defaults in the payment of interest on any Security of
such series when the same becomes due and payable, and such default continues
for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default or
breach continues for a period of 60 consecutive days after written notice to the
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Company by the Trustee or to the Company and the Trustee by the Holders of 25%
or more in aggregate principal amount of the Securities of all series affected
thereby;
(d) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or under any mortgage, indenture,
guaranty or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company, whether
such indebtedness now exists or shall hereafter be created, which default shall
have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged or such acceleration having
been rescinded or annulled within a period of 20 days after there shall have
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the outstanding securities of all series affected thereby a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; provided, that no Event of
Default under this subsection (d) shall be deemed to exist as a result of the
acceleration of any such indebtedness if the principal of and interest on such
indebtedness, when added to the principal of and interest on all other such
indebtedness which has been accelerated as aforesaid (excluding any such
indebtedness which has been discharged or as to which the acceleration has been
duly rescinded or annulled), shall not exceed $50,000,000;
(e) a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under Federal bankruptcy law or any other applicable
Federal or State law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part
of its property, or ordering the winding up or liquidation of its affairs is
entered, and continues unstayed and in effect for a period of 60 consecutive
days;
(f) the Company (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or for all or substantially all of the property and
assets of the Company or (iii) effects any general assignment for the benefit of
creditors; or
(g) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
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SECTION 6.02. Acceleration. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.01 with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate class)
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clauses (c), (d) or (g) of
Section 6.01 with respect to the Securities of one or more but not all series
then outstanding, or with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.03) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in clause (e) or (f) of Section
6.01 occurs and is continuing, then the principal amount (or, if any Securities
are Original Issue Discount Securities, such portion of the Principal as may be
specified in the terms thereof established pursuant to Section 2.03) of all the
Securities then outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the Principal as may be specified in the
terms thereof established pursuant to Section 2.03) of the Securities of any
series (or of all the
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Securities, as the case may be) shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Securities of each such series (or of all the Securities,
as the case may be) and the Principal of any and all Securities of each such
series (or of all the Securities, as the case may be) which shall have become
due otherwise than by acceleration (with interest upon such Principal and, to
the extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of each such series to the date of such payment or deposit)
and such amount as shall be sufficient to cover all amounts owing the Trustee
under Section 7.07, and if any and all Events of Default under the Indenture,
other than the non-payment of the Principal of Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise remedied
as provided herein, then and in every such case the Holders of a majority in
aggregate principal amount of all the then outstanding Securities of all such
series that have been accelerated (voting as a single class), by written notice
to the Company and to the Trustee, may waive all defaults with respect to all
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 6.03. Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
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SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the principal
as is then accelerable under Section 6.02) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may waive
an existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or
interest on any Security as specified in clauses (a) or (b) of Section 6.01 or
in respect of a covenant or provision of this Indenture which cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default with respect to the Securities of such series arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
SECTION 6.05. Control by Majority. Subject to Sections 7.01 and
7.02(e)), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this Section
6.05.
SECTION 6.06. Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of
a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
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(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses (including the costs and expenses of its counsel) to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series have
not given the Trustee a direction that is inconsistent with such written
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's Security
on or after the respective due dates expressed on such Security, or to bring
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 6.08. Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.03 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is
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hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it under Section 7.07.
Nothing herein contained shall be deemed to empower the Trustee to authorize or
consent to, or accept or adopt on behalf of any Holder, any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: In case the Principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default 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 same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the Principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for Principal
and interest, with interest upon the overdue Principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such Principal and interest or Yield to Maturity, without preference
or priority of Principal over interest or Yield to Maturity, or of
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interest or Yield to Maturity over Principal, or of any installment of
interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
SECTION 6.11. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then, and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored to their former positions
hereunder and thereafter all rights and remedies of the Company, Trustee and the
Holders shall continue as though no such proceeding had been instituted.
SECTION 6.12. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, in either case in respect to the
Securities of any series, a court may require any party litigant in such suit
(other than the Trustee) to file an undertaking to pay the costs of the suit,
and the court may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article 6 or by law to the Trustee or to the Holders may be exercised
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from time to time, and as often as may be deemed expedient, by the Trustee or by
the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity reasonably
satisfactory to it against any loss, liability or expense. 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 Article 7.
SECTION 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act
Sections 315(a) through (d):
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, Officers' Certificate, Opinion of
Counsel (or both), statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document believed by it to be genuine and to have been signed
or presented by the proper Person or Persons. The Trustee need not investigate
any fact or matter stated in the document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
Section 10.04. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or opinion. Subject to
Sections 7.01 and 7.02, whenever in the administration of the trusts 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;
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(c) the Trustee may act through its attorneys and agents not regularly
in its employ and shall not be responsible for the misconduct or negligence of
any agent or attorney appointed with due care;
(d) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the board of directors of the Company may be evidenced to the
Trustee by a Board Resolution;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be liable to the Holders for any action it
takes or omits to take in good faith that it believes to be authorized or within
its rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders in accordance with Section 6.05 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;
(g) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(h) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, Officers' Certificate, Opinion of Counsel, Board Resolution,
statement, instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper or
document unless requested in writing so to do by the Holders of not less than a
majority in aggregate principal amount of the Securities of all series affected
then outstanding; provided 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, in the opinion of the Trustee, not 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 expenses or
liabilities as a condition to proceeding; and
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(i) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities of any series unless either (1)
a Responsible Officer of the Trustee assigned to the Corporate Trust Department
of the Trustee (or any successor division or department of the Trustee) shall
have actual knowledge of such Default or Event of Default or (2) written notice
of such Default or Event of Default shall have been given to the Trustee by the
Company or any other obligor on the Securities of any series or by any Holder of
the Securities of any series.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act Sections 310(b)
and 311. For purposes of Trust Indenture Act Section 311(b)(4) and (6), the
following terms shall mean:
(a) "CASH TRANSACTION" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
SECTION 7.04. Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall be
taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities.
SECTION 7.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a Responsible Officer with the Corporate Trust
Department of the Trustee, the Trustee shall give to each Holder of Securities
of
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such series notice of such Default within 90 days after obtaining knowledge of
such Default (i) if any Unregistered Securities of such series are then
outstanding, to the Holders thereof, by publication at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London and (ii) to all Holders of
Securities of such series in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, unless such Default shall have been cured or
waived before the mailing or publication of such notice; provided, however,
that, (i) except in the case of a Default in the payment of the Principal of or
interest on any Security, the Trustee shall be protected in withholding such
notice if the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders and (ii) in the case of any Default of
the character specified in Section 6.01(c) with respect to Securities of such
series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
May 15, beginning with May 15, 2000, the Trustee shall mail to each Holder as
and to the extent provided in Trust Indenture Act Section 313(c) a brief report
dated as of such May 15, if required by Trust Indenture Act Section 313(a).
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee such compensation as shall be agreed upon in writing from time to time
for its services. The compensation of the Trustee shall not be limited by any
law on compensation of a Trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee. Such expenses shall
include the reasonable compensation and expenses of the Trustee's agents,
counsel and other Persons not regularly in its employ.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability or expense incurred by it without negligence or
bad faith on its part arising out of or in connection with the acceptance or
administration of this Indenture and the Securities or the issuance of the
Securities or of a series thereof or the trusts hereunder and the performance of
duties under this Indenture and the Securities, including the costs and expenses
of defending itself against or investigating any claim or liability and of
complying with any process served upon it or any of its officers in connection
with the exercise or performance of any of its powers or duties under this
Indenture and the Securities.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, in its capacity as Trustee, except money or
property held in trust to pay Principal of, and interest on particular
Securities.
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The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
resignation or removal of the Trustee, the satisfaction and discharge of this
Indenture or the rejection or termination of this Indenture under bankruptcy
law. Such additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities or coupons, and the Securities are hereby subordinated to such senior
claim. If the Trustee renders services and incurs expenses following an Event of
Default under Section 6.01(e) or Section 6.01(f) hereof, the parties hereto and
the Holders by their acceptance of the Securities hereby agree that such
expenses are intended to constitute expenses of administration under any
bankruptcy law.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and appointment
of a successor Trustee as Trustee with respect to the Securities of any series
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of any
series at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next succeeding
paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
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A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.07, (i) the retiring Trustee shall
transfer all property held by it as Trustee in respect of the Securities of such
series to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee in respect of the Securities of such series shall become effective and
(iii) the successor Trustee shall have all the rights, powers and duties of the
Trustee in respect of the Securities of such series under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder of
Securities of such series.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
The Company shall give notice of any resignation and any removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee in respect of the Securities of such series to all Holders of
Securities of such series. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as set
forth in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. The Trustee shall not be liable for
interest on any money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article 8 of this Indenture.
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ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(a) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of such
series that have been replaced or Securities of such series that are paid
pursuant to Section 4.01 or Securities of such series for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii) the
Company irrevocably deposits in trust with the Trustee, as trust funds solely
for the benefit of the Holders of such Securities for that purpose, money or
U.S. Government Obligations or a combination thereof sufficient (unless such
funds consist solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment, to pay
Principal of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, and (iii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been complied with.
With respect to the foregoing clause (a), only the Company's
obligations under Section 7.07 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (b), only the Company's
obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07 and 8.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture with respect to the Securities of
such series except for those surviving obligations specified above.
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SECTION 8.02. Defeasance. Except as provided below, the Company will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have been
satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest on the Securities of such
series, money or U.S. Government Obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the Trustee (i) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service to the
effect that the Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.02 and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred or (y) an Opinion of Counsel to the same effect as the ruling described
in clause (x) above and (ii) an Opinion of Counsel to the effect that the
Holders of the Securities of such series have a valid security interest in the
trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.02
of the Securities of such series have been complied with.
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The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07,
7.08 and 8.05 with respect to the Securities of such series shall survive until
such Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.03. Covenant Defeasance. The Company may omit to comply with
any term, provision or condition set forth in Sections 4.03 or 4.04 (or any
other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03), and such
omission shall be deemed not to be an Event of Default under clauses (c) or (g)
of Section 6.01, and clause (d) of Section 6.01 will no longer be applicable
with respect to the outstanding Securities of a series, if:
(a) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest, if any, on the Securities
of such series, money or U.S. Government Obligations or a combination thereof in
an amount sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration of
any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the Principal of and interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall have
occurred and be continuing on the date of such deposit;
(d) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under the UCC and
(ii) such Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and covenant defeasance and will be subject
to federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the covenant defeasance contemplated by this
Section 8.03 of the Securities of such series have been complied with.
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SECTION 8.04. Application of Trust Money. Subject to Section 8.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of Principal of and
interest on the Securities of such series; but such money need not be segregated
from other funds except to the extent required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon shall
be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request, subject to
applicable abandoned property laws, any money held by them and required to make
payments hereunder under this Indenture that remains unclaimed for two years;
provided that the Trustee or such Paying Agent before being required to make any
payment may cause to be published at the expense of the Company once in an
Authorized Newspaper in The City of New York or with respect to any Security the
interest on which is based on the offered quotations in the interbank Eurodollar
market for dollar deposits in an Authorized Newspaper in London or mail to each
Holder entitled to such money at such Holder's address (as set forth in the
Security Register) notice that such money remains unclaimed and that after a
date specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
8.04 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities of the applicable series shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.01, 8.02 or 8.03, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
8.04; provided that, if the Company has made any payment of Principal of or
interest on the Securities of any series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to
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receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of any series without
notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not, as evidenced by an
Opinion of Counsel, materially and adversely affect the interests of the
Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment hereunder
with respect to the Securities of any or all series by a successor Trustee;
(e) to establish the form or forms or terms of Securities of any series
or of the coupons appertaining to such Securities as permitted by Section 2.03;
(f) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(g) to issue additional Securities of a series previously established,
as provided in Section 2.03 hereof; and
(h) to make any change that does not, as evidenced by an Opinion of
Counsel, materially and adversely affect the rights of any Holder of any series
of Securities, including without limitation, to add the covenants or other
obligations of the Company, to add co-obligors or guarantors for the benefit or
the Holders or to secure the Securities.
SECTION 9.02. With Consent of Holders. Subject to Section 6.07, without
prior notice to any Holders, the Company and the Trustee may amend this
Indenture and the Securities of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Securities of all
series affected by such supplemental indenture (all such series voting as one
class), and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one class)
by written notice to the
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Trustee may waive future compliance by the Company with any provision of this
Indenture or the Securities of such series.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(a) extend the stated maturity of the Principal of, or any sinking fund
obligation or any installment of interest on, such Holder's Security, or reduce
the Principal amount thereof or the rate of interest thereon (including any
amount in respect of original issue discount), or any premium payable with
respect thereto, or reduce the amount of the Principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 6.02 or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the due
date therefor;
(b) reduce the percentage in principal amount of outstanding Securities
of the relevant series the consent of whose Holders is required for any such
supplemental indenture, for any waiver of compliance with certain provisions of
this Indenture or certain Defaults and their consequences provided for in this
Indenture;
(c) waive a Default in the payment of Principal of or interest on any
Security of such Holder; or
(d) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the coupons appertaining to
such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall give to the Holders affected thereby a
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notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its Security or portion of its
Security. Such revocation shall be effective only if the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver shall become effective with
respect to any Securities affected thereby on receipt by the Trustee of written
consents from the requisite Holders of outstanding Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be more than 60 days prior to the solicitation of consents) for the
purpose of determining the Holders of the Securities of any series affected
entitled to consent to any amendment, supplement or waiver. If a record date is
fixed, then, notwithstanding the immediately preceding paragraph, those Persons
who were such Holders at such record date (or their duly designated proxies) and
only those Persons shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be such Holders after such record date. No such consent shall be
valid or effective for more than 180 days after such record date.
After an amendment, supplement or waiver becomes effective with respect
to the Securities of any series affected thereby, it shall bind every Holder of
such Securities unless it is of the type described in any of clauses (a) through
(d) of Section 9.02. In case of an amendment or waiver of the type described in
clauses (a) through (d) of Section 9.02, the amendment or waiver shall bind each
such Holder who has consented to it and every subsequent Holder of a Security
that evidences the same indebtedness as the Security of the consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
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SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the requirements
of the Trust Indenture Act as then in effect.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 10.02. Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person when received or
(b) if, to the Holders, if mailed by first class mail 5 days after mailing, or
(c) as between the Company and the Trustee if sent by facsimile transmission,
when transmission is confirmed, in each case addressed as follows:
if to the Company:
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
Attention:
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if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Corporate Trust Administration
The Company or the Trustee by written notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York, or with respect to any Security the interest
on which is based on the offered quotations in the interbank Eurodollar market
for dollar deposits at least once in an Authorized Newspaper in London, and by
mailing to the Holders thereof who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee and to Holders of Registered
Securities by mailing to such Holders at their addresses as they shall appear on
the Security Register. Notice mailed shall be sufficiently given if so mailed
within the time prescribed. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 10.02, it is duly given, whether or not the
addressee receives it.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent .
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
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(b) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall except as otherwise provided herein
include:
(a) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based;
(c) a statement that, in the opinion of each 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 each such
person, such condition or covenant has been complied with; provided, however,
that, with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 10.05. Evidence of Ownership. The Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of such
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such certificate shall
be deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security bearing a specified
identifying number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such certificate.
Any such certificate may be issued in respect of one or more Unregistered
Securities specified therein. The holding by the Person named in any such
certificate of any Unregistered Securities specified therein shall be presumed
to continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (a) another certificate bearing a
later date issued in respect of the same Securities
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shall be produced or (b) the Security specified in such certificate shall be
produced by some other Person, or (c) the Security specified in such certificate
shall have ceased to be outstanding. Subject to Article 7, the fact and date of
the execution of any such instrument and the amount and numbers of Securities
held by the Person so executing such instrument may also be proven in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in any other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series 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,
subject to the provisions of this Indenture, interest on such Registered
Security and for all other purposes; and neither the Company nor the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary.
SECTION 10.06. Rules by Trustee, Paying Agent or Registrar. The Trustee
may make reasonable rules for action by or at a meeting of Holders. The Paying
Agent or Registrar may make reasonable rules for its functions.
SECTION 10.07. Payment Date Other than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such Security,
as the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of such payment
for the period from and after such date.
SECTION 10.08. Governing Law. The laws of the State of New York shall
govern this Indenture and the Securities.
SECTION 10.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
SECTION 10.10. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.11. Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
58
<PAGE> 63
SECTION 10.12. Separability. In case any provision in this Indenture or
in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10.13. Tables of Contents, Headings, Etc. The Table of Contents
and headings of the Articles and Sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms and provisions hereof.
SECTION 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 10.15. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "REQUIRED CURRENCY") into a currency in which a judgment will be rendered
(the "JUDGMENT CURRENCY"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business
Day, then, to the extent permitted by applicable law, the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the Business Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the
59
<PAGE> 64
Required Currency the amount, if any, by which such actual receipt shall fall
short of the full amount of the Required Currency so expressed to be payable and
(iii) shall not be affected by judgment being obtained for any other sum due
under this Indenture.
60
<PAGE> 65
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
AMERADA HESS CORPORATION
as the Company
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Trustee
By:
--------------------------------
Name:
Title:
61
<PAGE> 1
EXHIBIT 5
May 25, 1999
Amerada Hess Corporation
1185 Avenue of the Americas
New York, NY 10036
Ladies and Gentlemen:
We have acted as special counsel for Amerada Hess Corporation in connection
with the proposed issuance in one or more series from time to time, directly to
purchasers or through agents or underwriters to be designated from time to time,
of debt securities (the "Securities"), such Securities to be issued under an
indenture (the "Indenture"), between you and The Chase Manhattan Bank, as
Trustee, as contemplated in your Registration Statement filed on Form S-3 on the
date hereof pursuant to Rule 415 under the Securities Act of 1933 (the
"Registration Statement"). We submit this opinion for use as Exhibit 5 to the
Registration Statement and hereby consent to use of this opinion in the
Registration Statement and to the use of our name under the caption "Legal
Opinions" in the Prospectus.
We have investigated your corporate status and have examined the
corporate proceedings authorizing the creation and issuance of the Securities.
Based upon the foregoing, and having regard to legal considerations that
we deem relevant, we are of the opinion that the Securities, when duly
authorized and executed by you and authenticated by or on behalf of the Trustee
pursuant to the terms of the Indenture, and issued for value in accordance
with the terms of the Indenture and applicable resolutions of your Board of
Directors, will be the validly issued, binding obligations of Amerada Hess
Corporation.
Very truly yours,
MILBANK, TWEED, HADLEY & McCLOY LLP
<PAGE> 1
EXHIBIT 12
AMERADA HESS CORPORATION
Ratio of Earnings To Fixed Charges
(in thousands)
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED DECEMBER 31,
ENDED --------------------------------------------------
MARCH 31, 1999 1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C> <C>
Earnings (losses)
Consolidated income (loss) before income taxes $ 94,440 $(514,111) $126,585 $1,013,944 $(352,649) $235,812
Fixed charges (excluding capitalized interest) 48,398 192,838 182,632 209,517 287,758 279,449
Amortization of capitalized interest 4,648 19,189 22,821 27,099 40,453 38,534
Minority interest in consolidated subsidiary with fixed charges 12,764 5,117 5,141 -- -- --
Undistributed earnings of equity investees (17,451) 29,844 (31,525) (25,084) (16,132) (14,180)
Distributed earnings of equity investees 1,550 3,586 2,086 2,086 2,231 5,086
-------- --------- -------- ---------- --------- --------
Total earnings (losses) $144,349 $(263,537) $307,740 $1,227,562 $ (38,339) $544,701
======== ========= ======== ========== ========= ========
Fixed Charges
Interest expensed $ 39,133 $ 152,934 $136,149 $ 165,501 $ 247,465 $245,149
Interest capitalized 5,117 23,559 10,284 -- -- --
-------- --------- -------- ---------- --------- --------
Total interest incurred (including amortization of debt
discount) 44,250 176,493 146,433 165,501 247,465 245,149
Portion of rent expense representative of interest(a) 9,265 39,904 46,483 44,016 40,293 34,300
-------- --------- -------- ---------- --------- --------
Total fixed charges $ 53,515 $ 216,397 $192,916 $ 209,517 $ 287,758 $279,449
======== ========= ======== ========== ========= ========
Ratio of earnings to fixed charges 2.7 (b) 1.6 5.9 (c) 1.9
======== ========= ======== ========= ======== ========
</TABLE>
(a) -- Represents management's estimate of the interest portion of rent
expense.
(b) -- In 1998, fixed charges of $216,397 combined with losses of $263,537
resulted in a deficiency of $479,934 in the ratio of earnings to fixed
charges. The 1998 loss included special items of $284,679, including
$237,000 for impairment of assets and operating leases.
(c) -- In 1995, fixed charges of $287,758 combined with losses of $38,339
resulted in a deficiency of $326,097 in the ratio of earnings to fixed
charges. The 1995 loss included special items of $456,689, including
$584,161 for impairment of assets, partially offset by gains on asset
sales and a tax refund.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of Amerada Hess
Corporation for the registration of their Debt Securities and to the
incorporation by reference therein of our report dated February 22, 1999, with
respect to the consolidated financial statements of Amerada Hess Corporation
included in its Annual Report on Form 10-K for the year ended December 31,
1998, and the related financial statement schedule included therein, filed with
the Securities and Exchange Commission.
Ernst & Young, LLP
New York, New York
May 26, 1999
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
AMERADA HESS CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 13-4921002
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1185 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No.
333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 19TH day of MAY, 1999.
THE CHASE MANHATTAN BANK
By /S/ GLENN G. MCKEEVER
--------------------------------
/S/ GLENN G. MCKEEVER
VICE PRESIDENT
-3-
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal
Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ............................................. $ 13,915
Interest-bearing balances ..................................... 7,805
Securities:
Held to maturity securities
1,429
Available for sale securities ...................................... 56,327
Federal funds sold and securities purchased under
agreements to resell .......................................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income ..............$131,095
Less: Allowance for loan and lease losses ............. 2,711
Less: Allocated transfer risk reserve ................. 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ........................................ 128,384
Trading Assets ..................................................... 48,949
Premises and fixed assets (including capitalized
leases) ....................................................... 3,095
Other real estate owned ............................................ 239
Investments in unconsolidated subsidiaries and
associated companies ......................................... 199
Customers' liability to this bank on acceptances
outstanding .................................................. 1,209
Intangible assets ................................................. 2,081
Other assets ...................................................... 11,352
--------
TOTAL ASSETS ...................................................... $296,717
========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ................................. $105,879
Noninterest-bearing ................................. $ 39,175
Interest-bearing .................................... 66,704
In foreign offices, Edge and Agreement, --------
subsidiaries and IBF's .............................. 79,294
Noninterest-bearing ...................................... $ 4,082
Interest-bearing .................................... 75,212
Federal funds purchased and securities sold under agree-
ments to repurchase .................................. 32,546
Demand notes issued to the U.S. Treasury .................. 629
Trading liabilities ....................................... 36,807
Otherborrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
With a remaining maturity of one year or less ........ 4,478
With a remaining maturity of more than one year
through three years ........................... 213
With a remaining maturity of more than three years . 115
Bank's liability on acceptances executed and outstanding .. 1,209
Subordinated notes and debentures ......................... 5,408
Other liabilities ......................................... 10,855
TOTAL LIABILITIES ......................................... 277,433
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............. 0
Common stock .............................................. 1,211
Surplus (exclude all surplus related to preferred stock) . 11,016
Undivided profits and capital reserves .................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities .......................... 279
Cumulative foreign currency translation adjustments ....... 16
TOTAL EQUITY CAPITAL ...................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL ...................... $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
