<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 21, 1997
REGISTRATION NOS. 333-39973
333-39973-01
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SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
<TABLE>
<S> <C>
APACHE CORPORATION APACHE FINANCE PTY LTD
(Exact name of registrant as specified in its (ACN 080 571 900)
charter) (Exact name of registrant as specified in its
charter)
DELAWARE AUSTRALIAN CAPITAL TERRITORY
(State of or other jurisdiction (State of or other jurisdiction
of incorporation or organization) of incorporation or organization)
NO. 41-0747868 NO. 52-2061913
(I.R.S. Employer Identification Number) (I.R.S. Employer Identification Number)
ONE POST OAK CENTRAL 256 ST. GEORGE'S TERRACE
2000 POST OAK BOULEVARD LEVEL 3
SUITE 100 PERTH, WESTERN AUSTRALIA 6000
HOUSTON, TEXAS 77056-4400 AUSTRALIA
(713) 296-6000 61-89-422-7222
(Address, including zip code, and telephone (Address, including zip code, and telephone
number, including area code, of registrant's number, including area code, of registrant's
executive offices) executive offices)
</TABLE>
Z.S. KOBIASHVILI
2000 POST OAK BOULEVARD, SUITE 100
ONE POST OAK CENTRAL
HOUSTON, TEXAS 77056-4400
(713) 296-6000
(Address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
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<C> <C>
RALPH K. MILLER, JR. CRAIG E. CHAPMAN
WOODARD, HALL & PRIMM, P.C. BROWN & WOOD LLP
7100 TEXAS COMMERCE TOWER ONE WORLD TRADE CENTER
HOUSTON, TEXAS 77002 NEW YORK, NEW YORK 10048-0557
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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 ("Securities Act"), other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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,
check the following box. [ ]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
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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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY
NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE
REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SUPPLEMENT SHALL
NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR
SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED NOVEMBER 21, 1997
PROSPECTUS
$300,000,000
[APACHE CORPORATION LOGO]
APACHE FINANCE PTY LTD
(ACN 080 591 900)
DEBT SECURITIES
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
APACHE CORPORATION
Apache Finance Pty Ltd, a proprietary company with limited liability organized
under the laws of the Australian Capital Territory, Australia (the "Issuer"),
and a wholly-owned indirect subsidiary of Apache Corporation (the "Company" or
"Apache"), intends from time to time to issue senior unsecured debt securities
("Debt Securities") in one or more series, at an aggregate initial offering
price not to exceed $300,000,000, at prices and on terms to be determined at or
prior to the time of sale. The specific designation, aggregate principal amount,
maturity, interest rate, method of distribution, and any prepayment or other
variable terms with regard to the Debt Securities in respect of which this
Prospectus is delivered will be, to the extent not set forth herein, set forth
in an accompanying Prospectus Supplement.
The Debt Securities will be irrevocably and unconditionally guaranteed (the
"Guarantees") by the Company (in such capacity, the "Guarantor"), and the
Guarantees will rank on a parity with all unsecured and unsubordinated
indebtedness of the Company.
Unless otherwise specified herein or in the applicable Prospectus Supplement,
the Debt Securities will be issued in fully registered book-entry form as global
bonds or global notes and will be registered in the name of The Depository Trust
Company, as depository ("DTC"), or its nominee. Interests in such Debt
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its participants. Debt Securities issued
in book-entry form will not be issuable as certificated securities except as
specified herein or in the applicable Prospectus Supplement. See "DTC
Book-Entry-Only System." Payment of the principal of, and premium, if any, and
interest on the Debt Securities will be made to DTC if and so long as DTC or its
nominee is the registered owner of the Debt Securities. The disbursement of such
payments to beneficial owners of the Debt Securities ("Beneficial Owners") will
be the responsibility of the DTC Participants and the Indirect Participants, all
as defined and more fully described in this Prospectus under the caption "DTC
Book-Entry-Only System."
The applicable Prospectus Supplement will contain information, where applicable
and to the extent not set forth herein, concerning certain United States federal
income tax considerations relating to the Debt Securities covered by such
Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Debt Securities may be sold directly by the Issuer to one or more
institutional purchasers, through agents designated from time to time, through
dealers or underwriters, or through any combination of the above. If any agents
of the Issuer, the Company or any underwriters are involved in the sale of the
Debt Securities, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in the Prospectus Supplement. See
"Plan of Distribution" for indemnification arrangements which the Issuer and the
Company are prepared to make available to underwriters and agents for the sale
of the Debt Securities.
The date of this Prospectus is , 1997.
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Neither the Issuer nor the Company has authorized, or taken any action to
cause, the issue or distribution in the Commonwealth of Australia, any of its
States, territories or possessions or any political subdivision thereof
("Australia"), or to any resident of Australia, of this Prospectus or any other
document inviting applications or offers to subscribe for or buy the Debt
Securities offered hereby or offering such Debt Securities for subscription or
purchase and, accordingly, neither this Prospectus (whether in draft or
definitive form) nor any such other document may be issued or distributed in
Australia or to any resident of Australia.
No prospectus in relation to the Debt Securities has been lodged with or
registered by the Australian Securities Commission. In connection with the
distribution of the Debt Securities, each underwriter or agent in respect of
each series of Debt Securities will represent and agree that (a) no Debt
Securities issued by the Issuer shall be offered or sold, directly or
indirectly, in Australia or any state or territory thereof or to a corporation,
partnership, trust or other entity organized under the laws of, or resident in,
Australia and (b) no documents in relation to an offer of Debt Securities shall
be distributed in Australia or in or from a state or territory thereof.
Apache Finance Pty Ltd is an Australian proprietary company with limited
liability. Some of its directors and executive officers, and the experts named
herein, reside outside the United States (principally in Australia). All or a
substantial portion of the assets of these persons and of Apache Finance Pty Ltd
are located outside the United States. As a result, it may not be possible for
investors to effect service of process within the United States upon such
persons or to enforce against such persons or Apache Finance Pty Ltd judgments
obtained in United States courts predicated upon the civil liability provisions
of the federal securities laws of the United States. Apache Finance Pty Ltd has
been advised by its Australian counsel, Arthur Robinson & Hedderwicks, that
there is doubt as to the enforceability in the Commonwealth of Australia, in
original actions or in actions for enforcement of judgments of United States
courts, of civil liabilities predicated upon the federal securities laws of the
United States. Apache Finance Pty Ltd will appoint CT Corporation System as
authorized agent upon which process may be served in any action arising out of
or based upon the Indenture hereinafter described or the Debt Securities or the
Guarantees which may be instituted in any federal or state court having subject
matter jurisdiction in the Borough of Manhattan, The City of New York, New York.
See "Description of Debt Securities and Guarantees."
Neither any associate (as defined in Division 16F of the Income Tax
Assessment Act 1936 of the Commonwealth of Australia (the "Tax Act") (but on the
basis that subparagraphs 159GZC(1)(a)(ii), (1)(b)(i) and (1)(d)(i) of the Tax
Act do not apply) of the Issuer (an "Associate") nor any resident of Australia
may (directly or indirectly) acquire any Debt Securities or any interest in or
right in respect of the Debt Securities (other than such a person who acquires
Debt Securities or such interest or right in the capacity of a dealer in
relation to the placement of the Debt Securities, interest or right).
Each person who so acquires any Debt Securities or such interest or right
will be deemed to have warranted in favor of the Issuer that the person is
neither an Associate nor a resident of Australia. Any Associate who so acquires
any Debt Securities or any interest in or right in respect of the Debt
Securities may be subject to Australian interest withholding tax and, if so,
will not be entitled to receive any payment of Additional Amounts (as defined
herein) from the Issuer or the Guarantor.
There are currently no Australian exchange controls which restrict the
payment of interest or Additional Amounts (as defined herein), or repayment of
principal to holders of the Debt Securities who are not residents of Australia,
provided they are not nationals of or connected with Iraq or Libya. The
authority of the Reserve Bank of Australia is required for certain payments to
the government of Iraq, the government of or the authorities in Libya, or the
authorities in the former Federal Republic of Yugoslavia (Serbia and Montenegro)
or their respective agencies or nationals.
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AVAILABLE INFORMATION
Apache is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "SEC"). Reports, proxy statements and other information filed by
Apache can be inspected and copied at the public reference facilities maintained
by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's
Regional Offices at Seven World Trade Center, 13th Floor, New York, New York
10048 and CitiCorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained by mail from the Public
Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates, or on the Internet at http://www.sec.gov. In addition,
reports, proxy statements and other information concerning Apache may be
inspected at the offices of The New York Stock Exchange, Inc. ("NYSE"), 20 Broad
Street, New York, New York 10005, and also at the offices of the Chicago Stock
Exchange ("CSE"), One Financial Place, 440 S. LaSalle Street, Chicago, Illinois
60605-1070. The address of the Company's principal executive offices and its
telephone number are 2000 Post Oak Boulevard, Suite 100, Houston, Texas
77056-4400 and (713) 296-6000.
The Company and the Issuer have filed with the SEC a Registration Statement
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement and the exhibits and schedules thereto, certain portions of which have
been omitted pursuant to the rules and regulations of the SEC. The information
so omitted may be obtained from the SEC's principal office in Washington, D.C.
upon payment of the fees prescribed by the SEC. For further information,
reference is hereby made to the Registration Statement. Any statements contained
herein concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the SEC are not necessarily
complete, and in each instance reference is made to the copy of such document so
filed, each such statement being qualified in its entirety by such reference.
Apache, on behalf of the Issuer, and the Issuer will make application to
the SEC for an order of the SEC exempting the Issuer from the reporting
requirements of the Exchange Act. If such order is granted, or the SEC otherwise
grants relief to the Issuer from such reporting requirements, the Issuer will
not be subject to the informational requirements of the Exchange Act. Subject to
SEC relief, the Company also does not intend to include in its consolidated
financial statements any separate financial information with respect to the
Issuer. In addition, in view of the Guarantees, the Issuer does not intend to
furnish to holders of Debt Securities separate financial statements of the
Issuer or other reports.
INFORMATION INCORPORATED BY REFERENCE
The following documents previously filed by the Company with the SEC
pursuant to the Exchange Act (SEC File No. 1,-4300) are incorporated in and made
a part of this Prospectus:
a. Annual Report on Form 10-K for the fiscal year ended December 31, 1996.
b. Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1997.
c. Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1997.
d. Quarterly Report on Form 10-Q for the fiscal quarter ended September 30,
1997.
e. Current Report on Form 8-K dated June 13, 1997.
f. Current Report on Form 8-K dated August 8, 1997.
g. Current Report on Form 8-K dated October 8, 1997.
All documents which the Company files pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering described herein shall be deemed to be
incorporated by reference herein and to be a part hereof from the
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date of filing of such reports and documents. Any statement contained in a
document incorporated by reference, or deemed to be incorporated by reference,
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document or in any accompanying Prospectus Supplement modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus. Certain statements contained herein or in the accompanying
Prospectus Supplement, including, without limitation, the statements in "The
Company" which are not historical facts, or incorporated by reference herein
constitute forward-looking statements as such term is defined in Section 27A of
the Securities Act and Section 21E of the Exchange Act. Certain factors as
discussed herein or in the Company's Exchange Act filings with the SEC,
including the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997, could cause actual results to differ materially from those
in the forward-looking statements. Unless otherwise specifically provided herein
or in any accompanying Prospectus Supplement, references to "$" or "dollars" in
this Prospectus or any such Prospectus Supplement shall mean United States
dollars.
The Company undertakes to provide without charge, upon the written or oral
request of any person to whom a copy of this Prospectus has been delivered, a
copy of any or all of the documents referred to above which are incorporated in
this Prospectus by reference, other than exhibits to such documents. Requests
should be directed to Cheri L. Peper, Corporate Secretary, Apache Corporation,
2000 Post Oak Boulevard, Suite 100, Houston, Texas 77056-4400; (713) 296-6000.
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All defined terms under Rule 4-10(a) of Regulation S-X promulgated under
the Securities Act shall have their statutorily-prescribed meanings when used in
this Prospectus. Quantities of natural gas are expressed in this Prospectus in
terms of thousand cubic feet ("Mcf"), million cubic feet ("MMcf") or billion
cubic feet ("Bcf"). Oil (which includes condensate) is quantified in terms of
barrels ("bbls"), thousands of barrels ("Mbbls") and millions of barrels
("MMbbls"). One barrel of oil is the energy equivalent of six Mcf of natural
gas, expressed as a barrel of oil equivalent. Natural gas is compared to oil in
terms of thousand barrels of oil equivalent ("Mboe") and in million barrels of
oil equivalents ("MMboe"). Oil and natural gas liquids are compared with natural
gas in terms of million cubic feet equivalent ("MMcfe") and billion cubic feet
equivalent ("Bcfe"). Daily oil and gas production is expressed in terms of
barrels of oil per day ("bopd") and thousands of cubic feet of gas per day
("Mcfd"), respectively. The Company's "net" working interest in wells or acreage
is determined by multiplying gross wells or acreage by the Company's working
interest therein. Unless otherwise specified, all references to wells and acres
are gross.
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THE COMPANY
Apache Corporation, a Delaware corporation formed in 1954, is an
independent energy company that primarily explores for, develops and produces
crude oil and natural gas. In North America, the Company's exploration and
production interests are focused on the Gulf of Mexico, the Anadarko Basin, the
Permian Basin, the Gulf Coast, East Texas and the Western Sedimentary Basin of
Canada. Outside North America, the Company has exploration and production
interests offshore Western Australia and in Egypt, and exploration interests in
China, Poland, offshore the Ivory Coast, and in Indonesia. The common stock, par
value $1.25 per share, of Apache ("Apache Common Stock") has been listed on the
NYSE since 1969, and on the CSE since 1960.
The Company holds interests in many of its North American and international
properties through operating subsidiaries, such as Apache Canada Ltd., MW
Petroleum Corporation, Apache Energy Limited, Apache International, Inc., Apache
Overseas, Inc., and Apache PHN Company, Inc., formerly known as The Phoenix
Resource Companies, Inc. The Company treats all operations as one segment of
business.
THE ISSUER
Apache Finance Pty Ltd is a proprietary company with limited liability
organized in October 1997 under the laws of the Australian Capital Territory,
Australia. Apache Finance Pty Ltd is a wholly-owned indirect subsidiary of the
Company. The purpose of Apache Finance Pty Ltd is to undertake borrowings on
behalf of the Company and certain other subsidiaries of the Company and to
advance the proceeds of such borrowings to the Company or certain of its other
subsidiaries of the Company.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used to refinance
outstanding indebtedness and for other general corporate purposes. To the extent
proceeds are used to refinance outstanding indebtedness, certain terms of the
indebtedness being refinanced will be set forth in the applicable Prospectus
Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratios of earnings to fixed charges were as follows for the
respective periods indicated:
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<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
- ------------- --------------------------------
1997 1996 1996 1995 1994 1993 1992
- ----- ----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
2.91 2.33 2.72 1.15 2.34 2.37 .72
</TABLE>
The Company's ratios of earnings to fixed charges were computed based on:
(A) consolidated income or losses from continuing operations before income taxes
and fixed charges (excluding interest capitalized); and (B) consolidated fixed
charges, which consist of interest on indebtedness (including amounts
capitalized), amortization of debt discount and expense and the estimated
portion of rental expense attributable to interest. Earnings were inadequate to
cover fixed charges by $14.8 million for 1992, due to write downs of the
carrying value of the U.S. and Canadian oil and gas properties of DEK Energy
Company ("DEKALB"), formerly known as DEKALB Energy Company, and losses incurred
on the divestiture of certain of DEKALB's U.S. assets.
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities and the Guarantees will be issued under an indenture (the
"Indenture") entered into among the Issuer, the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"). Pursuant to the Guarantees, the Company will
irrevocably and unconditionally guarantee payments of principal, premium, if
any, interest and Additional Amounts, if any, with respect to the Debt
Securities. The Debt Securities to be offered by this Prospectus are limited to
an aggregate initial offering price not to exceed $300,000,000. However, the
Indenture does not limit the amount of Debt Securities which can be issued
thereunder and provides that additional Debt Securities of any series may be
issued thereunder up to the aggregate principal amount which may be authorized
from time to time by the Issuer and the Company. Unless otherwise indicated
herein or in the applicable Prospectus Supplement, the Debt Securities will be
issued in denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
The maturity date, interest payment dates, and rate of interest of the Debt
Securities will be as set forth in the Prospectus Supplement applicable thereto.
Subject to certain exceptions therein set forth, the Indenture provides for the
payment of interest on any interest payment date only to persons in whose names
the Debt Securities are registered on the regular record date, which is the last
day of the respective calendar months preceding the month in which an interest
payment is due (whether or not a business day).
A copy of the Indenture is an exhibit to the Registration Statement of
which this Prospectus is a part. The information herein includes a summary of
certain provisions of the Indenture and does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all provisions of
the Indenture including the definition therein of certain terms. The following
summaries set forth certain general terms and provisions of the Debt Securities
to which any Prospectus Supplement may relate. The particular terms of the Debt
Securities offered by any Prospectus Supplement and the extent, if any, to which
such general provisions may apply to the Debt Securities so offered will, to the
extent not described herein, be described in the Prospectus Supplement relating
to such Debt Securities.
PROVISIONS APPLICABLE TO ALL DEBT SECURITIES
General
Reference is made to the Prospectus Supplement that accompanies this
Prospectus for the following terms, to the extent permitted by the Indenture,
and other information with respect to the Debt Securities being offered thereby,
to the extent not described herein: (i) the designation, aggregate principal
amount and authorized denominations of such Debt Securities; (ii) the percentage
of the principal amount at which such Debt Securities will be issued; (iii) the
date (or the manner of determining or extending the date or dates) on which the
principal of such Debt Securities will be payable; (iv) whether such Debt
Securities will be issued in fully registered form or in bearer form or any
combination thereof; (v) whether such Debt Securities will be issued in the form
of one or more global securities and whether such global securities are to be
issuable in a temporary global form or permanent global form; (vi) if other than
U.S. dollars, the currency or currencies or currency unit or units in which Debt
Securities may be denominated and purchased and the currency or currencies or
currency units in which principal, premium (if any) and any interest may be
payable; (vii) if the currency for which Debt Securities may be purchased or in
which principal, premium (if any) and any interest may be payable is at the
election of the Issuer or the purchaser, the manner in which such an election
may be made and the terms of such election; (viii) the rate or rates per annum
at which such Debt Securities will bear interest, if any, or the method or
methods of determination of such rate or rates and the basis upon which interest
will be calculated if other than that of a 360-day year consisting of twelve
30-day months; (ix) the date or dates from which such interest, if any, on such
Debt Securities will accrue or the method or methods, if any, by which such date
or dates are to be determined, the date or dates on which such interest, if any,
will be payable, the date on which payment of such interest, if any, will
commence and the Regular Record Dates for such Interest Payment Dates, if any;
(x) the date or dates, if any, on or after which, or the
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period or periods, if any, within which, and the price or prices at which the
Debt Securities may, pursuant to any optional redemption provisions, be redeemed
at the option of the Issuer or of the holder thereof and the other terms and
provisions of such optional redemption; (xi) information with respect to book-
entry procedures relating to global Debt Securities; (xii) whether and under
what circumstances the Issuer will pay Additional Amounts as contemplated by
Section 1004 of the Indenture (the term "interest," as used in this Prospectus,
shall include such Additional Amounts) on such Debt Securities to any holder who
is a United States Alien (as defined in the Indenture) (including any
modification to the definition of such terms contained in the Indenture as
originally executed) in respect of any tax, assessment or governmental charge
and, if so, whether the Issuer will have the option to redeem such Debt
Securities rather than pay such Additional Amounts (and the terms of any such
option); (xiii) any deletions from, modifications of or additions to the Events
of Default or covenants of the Issuer with respect to any of such Debt
Securities; (xiv) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable to the
Debt Securities of such series, or any covenants in addition to those specified
in Section 402(3) relating to the Debt Securities of such series shall be
subject to covenant defeasance, and any deletions from, or modifications or
additions to, the provisions of Article Four of the Indenture relating to
satisfaction and discharge in respect of the Debt Securities of such series;
(xv) any index or other method used to determine the amount of payments of
principal, premium (if any) and interest, if any, on such Debt Securities; (xvi)
if a trustee other than The Chase Manhattan Bank is named for such Debt
Securities, the name of such trustee; and (xvii) any other specific terms of the
Debt Securities. All Debt Securities of any one series need not be issued at the
same time and all the Debt Securities of any one series need not bear interest
at the same rate or mature on the same date.
If any of the Debt Securities are sold for foreign currencies or foreign
currency units or if the principal of, or premium, if any, or interest, if any,
on any series of Debt Securities is payable in foreign currencies or foreign
currency units, the restrictions, elections, tax consequences, specific terms
and other information with respect to such Debt Securities and such foreign
currencies or foreign currency units will be set forth in the applicable
Prospectus Supplement.
Other than as described below under "Limitation on Liens" and "Issuer's
Obligation to Purchase Debt Securities on Change in Control," the Indenture does
not contain any provision that would limit the ability of the Company or the
Issuer to incur indebtedness or that would afford holders of Debt Securities
protection in the event of a decline in the credit quality of the Company or the
Issuer or a takeover, recapitalization or highly leveraged or similar
transaction involving the Company or the Issuer. Reference is made to the
Prospectus Supplement relating to the particular series of Debt Securities
offered thereby, to the extent not otherwise described herein, for any
information with respect to any deletions from, modifications of or additions to
the Events of Default described below or covenants of the Company and the Issuer
contained in the Indenture, including any addition of a covenant or other
provision providing event risk or similar protection.
Guarantees
The Company will irrevocably and unconditionally guarantee to each holder
of a Debt Security issued by the Issuer and authenticated and delivered by the
Trustee the due and punctual payment of the principal of, and any premium and
interest on, such Debt Security, when and as the same shall become due and
payable, whether at maturity, upon acceleration, by call for redemption,
repayment or otherwise in accordance with the terms of the Debt Securities and
of the Indenture. The Company has (a) agreed that its obligations under the
Guarantees in the event of an Event of Default will be as if it were principal
obligor and not merely surety, and will be enforceable irrespective of any
invalidity, irregularity or unenforceability of any series of the Debt
Securities or the Indenture or any supplement thereto and (b) waived its right
to require the Trustee or the holders to pursue or exhaust its legal or
equitable remedies against the Issuer prior to exercising its rights under the
Guarantees.
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Ranking
The Guarantees will be unsecured obligations of the Company, and will rank
on a parity with all other unsecured and unsubordinated indebtedness of the
Company. The Debt Securities issued by the Issuer will be unsecured obligations
of the Issuer, and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Issuer.
Dividend and other distributions to the Company from its various
subsidiaries may be subject to certain statutory, contractual and other
restrictions (including, without limitation, exchange controls that may be
applicable to foreign subsidiaries). The rights of any creditors of the Company
to participate in the assets of any subsidiary upon such subsidiary's
liquidation or recapitalization will be subject to the prior claims of the
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against such subsidiary. The claims of holders
under the Debt Securities or the Guarantees will be effectively subordinated to
the claims of creditors of the Company's subsidiaries. The Indenture does not
restrict the amount of indebtedness that may be incurred by the Issuer, the
Company or its other subsidiaries.
Interest Rates
The Debt Securities will earn interest at the fixed or floating rate for
the period of time specified in the applicable Prospectus Supplement.
If the Debt Securities earn interest at a floating rate, the applicable
Prospectus Supplement shall state the Interest Rate Basis or Bases (including
(a) the applicable Spread, if any, and/or (b) multiplied by the applicable
Spread Multiplier, if any), the Interest Payment Period and Dates, the Index
Maturity and the Maximum Interest Rate and/or Minimum Interest Rate, if any, as
such terms are defined below. If one or more of the applicable Interest Rate
Bases is LIBOR, the Prospectus Supplement must also specify the Index Currency
and Designated LIBOR Page, as such terms are defined below. Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities shall
bear interest on the basis of a 360-day year consisting of twelve 30-day months.
The "Spread" is the number of basis points to be added to or subtracted
from the related Interest Rate Basis or Bases applicable to each respective Debt
Security. The "Spread Multiplier" is the percentage of the related Interest Rate
Basis or Bases by which such Interest Rate Basis or Bases will be multiplied to
determine the applicable interest rate. The "Index Maturity" is the period to
maturity of the instrument or obligation with respect to which the related
Interest Rate Basis or Bases will be calculated.
Unless otherwise specified in the Prospectus Supplement, the Interest Rate
Basis may, as described below, include (i) the Commercial Paper Rate, (ii)
LIBOR, (iii) the Treasury Rate, or (iv) such other Interest Rate Basis or
interest rate formula as may be specified in the applicable Prospectus
Supplement.
The applicable Prospectus Supplement will specify whether the floating rate
of interest will be reset daily, weekly, monthly, quarterly, semiannually or
annually or on such other specified basis (each, an "Interest Reset Period") and
the dates on which such rate of interest will be reset (each, an "Interest Reset
Date"). Unless otherwise specified in the applicable Prospectus Supplement, the
Interest Reset Dates will be, in the case of a floating interest rate which
resets: (i) daily, each Business Day; (ii) weekly, the Wednesday of each week
(unless the Treasury Rate is an applicable Interest Rate Basis, in which case
the Tuesday of each week except as described below); (iii) monthly, the third
Wednesday of each month; (iv) quarterly, the third Wednesday of March, June,
September and December of each year, (v) semiannually, the third Wednesday of
the two months specified in the applicable Prospectus Supplement; and (vi)
annually, the third Wednesday of the month specified in the applicable
Prospectus Supplement. If any Interest Reset Date would otherwise be a day that
is not a Business Day, such Interest Reset Date will be postponed to the next
succeeding Business Day, unless LIBOR is an applicable Interest Rate Basis and
such Business Day falls in the next succeeding calendar month, in which case
such Interest Reset Date will be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an
8
<PAGE> 10
Interest Reset Date, then such Interest Reset Date will be postponed to the next
succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing on
the related Interest Reset Date will be the rate determined by the Calculation
Agent (as hereinafter defined), after consultation with the Issuer, as of the
applicable Interest Determination Date on or prior to the Calculation Date (as
hereinafter defined). The "Interest Determination Date" (i) with respect to the
Commercial Paper Rate will be the second Business Day immediately preceding the
applicable Interest Reset Date; (ii) with respect to LIBOR will be the second
London Business Day immediately preceding the applicable Interest Reset Date,
unless the Index Currency is British pounds sterling, in which case the
"Interest Determination Date" will be the applicable Interest Reset Date; and
(iii) with respect to the Treasury Rate will be the day in the week in which the
applicable Interest Reset Date falls on which day Treasury Bills (as hereinafter
defined) are auctioned during or for the week in which the applicable Interest
Reset Date falls (Treasury Bills being normally sold at an auction held on
Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that such auction may
be held on the preceding Friday); provided, however, that if an auction is held
on the Friday of the week preceding the applicable Interest Reset Date, the
Interest Determination Date will be such preceding Friday, provided, further,
that if the Interest Determination Date would otherwise fall on an Interest
Reset Date, then such Interest Reset Date will be postponed to the next
succeeding Business Day. The "Interest Determination Date" pertaining to a
floating interest rate which is determined by reference to two or more Interest
Rate Bases will be the most recent Business Day which is at least two Business
Days prior to the applicable Interest Reset Date on which each Interest Rate
Basis is determinable. Each Interest Rate Basis will be determined as of such
date, and the applicable interest rate will take effect on the applicable
Interest Reset Date.
Either or both of the following may also apply to the floating interest
rate on Debt Securities: (i) a Maximum Interest Rate, or ceiling, that may
accrue during any Interest Reset Period, and (ii) a Minimum Interest Rate, or
floor, that may accrue during any Interest Reset Period. In addition to any
Maximum Interest Rate that may apply, the interest rate on any Debt Securities
will in no event be higher than the maximum rate permitted by New York law, as
the same may be modified by United States laws of general application.
Except as provided below or in the applicable Prospectus Supplement,
interest will be payable, in the case of floating interest rates which reset:
(i) daily, weekly or monthly, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December of each year, as
specified in the applicable Prospectus Supplement; (ii) quarterly, on the third
Wednesday of March, June, September and December of each year; (iii)
semiannually, on the third Wednesday of the two months of each year specified in
the applicable Prospectus Supplement; and (iv) annually, on the third Wednesday
of the month of each year specified in the applicable Prospectus Supplement. If
any Interest Payment Date other than the Maturity Date for the payment of
interest at a floating rate would otherwise be a day that is not a Business Day,
such Interest Payment Date will be postponed to the next succeeding Business
Day, except that if LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Payment Date will
be the immediately preceding Business Day.
All percentages resulting from any calculation of floating interest rates
will be rounded to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upwards (e.g., 9.876545
percent (or .09876545) would be rounded to 9.87655 percent (or .0987655)), and
all amounts used in or resulting from such calculation will be rounded, in the
case of United States dollars, to the nearest cent or, in the case of a foreign
currency or composite currency, to the nearest unit (with one-half cent or unit
being rounded upwards).
Accrued floating rate interest will be calculated by multiplying the
principal amount of the Debt Securities to which it relates by an accrued
interest factor. Such accrued interest factor will be computed by adding the
interest factor calculated for each day in the applicable Interest Reset Period.
Unless
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<PAGE> 11
otherwise specified in the applicable Prospectus Supplement, the interest factor
for each such day will be computed by dividing the interest rate applicable to
such day by 360, if an applicable Interest Rate Basis is the Commercial Paper
Rate or LIBOR, or by the actual number of days in the year if an applicable
Interest Rate Basis is the Treasury Rate. Unless otherwise specified in the
applicable Prospectus Supplement, if the floating interest rate is calculated
with reference to two or more Interest Rate Bases, the interest factor will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied as specified in the applicable Prospectus
Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, The
Chase Manhattan Bank will be the "Calculation Agent." Upon request of the
Beneficial Owner of any Debt Securities, the Calculation Agent will disclose the
interest rate then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the next succeeding
Interest Reset Date with respect to such Debt Securities. Unless otherwise
specified in the applicable Prospectus Supplement, the "Calculation Date," if
applicable, pertaining to any Interest Determination Date will be the earlier of
(i) the tenth calendar day after such Interest Determination Date or, if such
day is not a Business Day, the next succeeding Business Day or (ii) the Business
Day immediately preceding the applicable Interest Payment Date or the Maturity
Date, as the case may be.
Unless otherwise specified in the applicable Prospectus Supplement, the
Calculation Agent shall determine each Interest Rate Basis in accordance with
the following provisions.
Commercial Paper Rate. Unless otherwise specified in the applicable
Prospectus Supplement, "Commercial Paper Rate" means, with respect to any
Interest Determination Date for which the interest rate is determined with
reference to the Commercial Paper Rate (a "Commercial Paper Rate Interest
Determination Date"), the Money Market Yield (as hereinafter defined) on such
date of the rate for commercial paper having the Index Maturity specified in the
applicable Prospectus Supplement as published in H.15(519) under the heading
"Commercial Paper." In the event that such rate is not published by 3:00 p.m.,
New York City time, on the related Calculation Date, then the Commercial Paper
Rate on such Commercial Paper Rate Interest Determination Date will be the Money
Market Yield of the rate for commercial paper having the Index Maturity
specified in the applicable Prospectus Supplement as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be calculated by the Calculation
Agent and will be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 a.m., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
New York, New York selected by the Calculation Agent, after consultation with
the Issuer, for commercial paper having the Index Maturity specified in the
applicable Prospectus Supplement placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized statistical
rating organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
<TABLE>
<S> <C> <C>
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
</TABLE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
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<PAGE> 12
LIBOR. Unless otherwise specified in the applicable Prospectus Supplement,
"LIBOR" means the rate determined in accordance with the following provisions:
(i) With respect to any Interest Determination Date for which the
interest rate is determined with reference to LIBOR (a "LIBOR Interest
Determination Date"), LIBOR will be either: (a) if "LIBOR Reuters" is
specified in the applicable Prospectus Supplement, the arithmetic mean of
the offered rates (unless the Designated LIBOR Page by its terms provides
only for a single rate, in which case such single rate shall be used) for
deposits in the Index Currency having the Index Maturity specified in such
Prospectus Supplement, commencing on the applicable Interest Reset Date,
that appear (or, if only a single rate is required as aforesaid, appears)
on the Designated LIBOR Page as of 11:00 a.m., London time, on such LIBOR
Interest Determination Date, or (b) if "LIBOR Telerate" is specified in the
applicable Prospectus Supplement or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Prospectus Supplement as the
method for calculating LIBOR, the rate for deposits in the Index Currency
having the Index Maturity specified in such Prospectus Supplement,
commencing on such Interest Reset Date, that appears on the Designated
LIBOR Page as of 11:00 a.m., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear, or if no
such rate appears, as applicable, LIBOR on such LIBOR Interest
Determination Date will be determined in accordance with the provisions
described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent will request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, after consultation with the Issuer, to provide the
Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity specified in the applicable
Prospectus Supplement, commencing on the applicable Interest Reset Date, to
prime banks in the London interbank market at approximately 11:00 a.m.,
London time, on such LIBOR Interest Determination Date and in a principal
amount that is representative for a single transaction in such Index
Currency in such market at such time. If at least two such quotations are
so provided, then LIBOR on such LIBOR Interest Determination Date will be
the arithmetic mean of such quotations. If fewer than two such quotations
are so provided, then LIBOR on such LIBOR Interest Determination Date will
be the arithmetic mean of the rates quoted at approximately 11:00 a.m., in
the applicable Principal Financial Center, on such LIBOR Interest
Determination Date by three major banks in such Principal Financial Center
selected by the Calculation Agent, after consultation with the Issuer, for
loans in the Index Currency to leading European banks, having the Index
Maturity specified in the applicable Prospectus Supplement and in a
principal amount that is representative for a single transaction in such
Index Currency in such market at such time; provided, however, that if the
banks so selected by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR determined as of such LIBOR Interest Determination
Date will be LIBOR in effect on such LIBOR Interest Determination Date.
(iii) "Index Currency" means the currency or composite currency
specified in the applicable Prospectus Supplement as to which LIBOR shall
be calculated. If no such currency or composite currency is specified in
the applicable Prospectus Supplement, the Index Currency shall be United
States dollars.
"Principal Financial Center" means the capital city of the country issuing
the Index Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs
and ECUs, the Principal Financial Center shall be New York City, Sydney,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified in the
applicable Prospectus Supplement, the display on the Reuters Monitor Money Rates
Service (or any successor service) for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency, or
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<PAGE> 13
(b) if "LIBOR Telerate" is specified in the applicable Prospectus Supplement or
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable
Prospectus Supplement as the method for calculating LIBOR, the display on the
Dow Jones Markets Limited (or any successor service) on the page specified in
the applicable Prospectus Supplement (or any other page as may replace such page
on such service) for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency.
Treasury Rate. Unless otherwise specified in the applicable Prospectus
Supplement, "Treasury Rate" means, with respect to any Interest Determination
Date for which the interest rate is determined by reference to the Treasury Rate
(a "Treasury Rate Interest Determination Date"), the rate from the auction held
on such Treasury Rate Interest Determination Date (the "Auction") of direct
obligations of the United States ("Treasury Bills") having the Index Maturity
specified in the applicable Prospectus Supplement, as such rate is published in
H.15(519) under the heading "Treasury Bills -- auction average (investment)" or,
if not published by 3:00 p.m., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity specified in the applicable Prospectus Supplement are not
reported as provided by 3:00 p.m., New York City time, on the related
Calculation Date, or if no such Auction is held, then the Treasury Rate will be
calculated by the Calculation Agent, after consultation with the Issuer, and
will be a yield to maturity (expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
p.m., New York City time, on such Treasury Rate Interest Determination Date, of
three leading primary United States government securities dealers selected by
the Calculation Agent, after consultation with the Issuer, for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity specified
in the applicable Prospectus Supplement; provided, however, that if the dealers
so selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Discount, Series, Maturities, Registration, and Payment
The Debt Securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate that at the
time of issuance is below market rates. See "Certain Tax
Considerations -- United States Federal Income Tax Considerations" and "Certain
Tax Considerations -- Australian Tax Considerations" herein. United States
federal income tax consequences and special considerations applicable to any
such series may also be described in the Prospectus Supplement relating thereto.
The Debt Securities may be issued in one or more series with the same or
various maturities. (Section 301) Debt Securities may be issued solely in fully
registered form without coupons ("Registered Securities"), solely in bearer form
with or without coupons ("Bearer Securities"), or as both Registered Securities
and Bearer Securities. (Section 301) Registered Securities may be exchangeable,
upon surrender, for other Debt Securities of the same series, registered in the
same name, for a like aggregate principal amount in authorized denominations and
will be transferable at any time or from time to time at the aforementioned
office. No service charge will be made to the holder for any such exchange or
transfer, except for any tax or governmental charge incidental thereto. If Debt
Securities of any series are issued as Bearer Securities, the applicable
Prospectus Supplement will contain any restrictions applicable to the offer,
sale or delivery of Bearer Securities and the terms upon which Bearer Securities
of the series may be exchanged for Registered Securities of the series and, if
permitted by applicable laws and regulations, the terms upon which Registered
Securities of the series may be exchanged for Bearer Securities of the series,
whether such Debt Securities are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in any such
permanent global security
12
<PAGE> 14
may exchange such interests for Debt Securities of such series and the
circumstances under which any such exchanges may occur.
Unless otherwise specified in the applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, with respect to the Debt
Securities offered thereby will be payable at the office or agency of the Issuer
and the Company maintained for such purposes in the city where the principal
corporate trust office of the Trustee is located, and will initially be the
principal corporate trust office of the Trustee, provided that payment of
interest, if any, may be made (subject to collection) by check mailed to the
persons in whose names the Debt Securities are registered at the close of
business on the day specified in the applicable Prospectus Supplement.
Form, Exchange, Registration and Transfer
Debt Securities will be exchangeable for other Debt Securities of the same
series and of like tenor, of any authorized denominations and of a like
aggregate principal amount and Stated Maturity (as defined in the Indenture).
Registered Securities may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) at the office of the Trustee or
at the corporate trust office of any transfer agent designated by the Issuer or
the Company for such purpose, without service charge and upon payment of any
taxes and other governmental charges as described in the Indenture. Such
transfer or exchange will be effected upon the books of the Trustee or such
transfer agent contingent upon such Trustee or transfer agent, as the case may
be, being satisfied with the documents of title and identity of the person
making the request. (Section 305)
In the event of any redemption of Debt Securities, neither the Issuer nor
the Company shall be required to: (i) issue, register the transfer of or
exchange such Debt Securities during a period beginning at the opening of
business 15 days before any selection of such Debt Securities to be redeemed and
ending at the close of business on the day of mailing of the relevant notice of
redemption; or (ii) register the transfer of or exchange any such Debt Security,
or portion thereof, called for redemption, except the unredeemed portion of any
such Debt Security being redeemed in part. (Section 305)
Limitation on Liens
Nothing in the Indenture, the Debt Securities or the Guarantees will in any
way limit the amount of indebtedness or securities (other than the Debt
Securities) which may be incurred or issued by the Company or any of its
Subsidiaries (as defined in the Indenture). The Indenture provides that neither
the Issuer nor the Company nor any other Subsidiary will issue, assume or
guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed secured by any mortgage, lien, pledge, security
interest or other encumbrance (defined in the Indenture as "Liens") upon any of
its property, subject to certain exceptions set forth in the Indenture, without
making effective provisions whereby any and all Debt Securities then outstanding
shall be secured by a Lien equally and ratably with any and all other
obligations thereby secured. Such restrictions will not, however, apply to (a)
Liens existing on the date of the Indenture or provided for under the terms of
agreements existing on the date thereof; (b) Liens on property to secure (i) all
or part of the cost of exploring, producing, gathering, processing, marketing,
drilling or developing such property, or to secure indebtedness incurred to
provide funds therefor; or (ii) indebtedness incurred to finance all or part of
the cost of acquiring, constructing, altering, improving or repairing any such
property or assets, or securing indebtedness incurred to provide funds therefor;
(c) Liens which secure only indebtedness owing by a Subsidiary to the Issuer or
the Company, or to one or more Subsidiaries, or the Company and one or more
Subsidiaries; (d) Liens on the property of any corporation or other entity
existing at the time such corporation or entity becomes a Subsidiary; (e) Liens
on any property to secure indebtedness incurred in connection with the
construction, installation or financing of pollution control or abatement
facilities or other forms of industrial revenue bond financing or indebtedness
issued or guaranteed by the United States, any state or any department, agency
or instrumentality of either or indebtedness issued to or guaranteed for the
benefit of a foreign government, any state or any department, agency or
instrumentality of either or an international finance agency or any division or
department thereof, including the World Bank, the International Finance
13
<PAGE> 15
Corporation and the Multilateral Investment Guarantee Agency; (f) any extension,
renewal or replacement (or successive extensions, renewals or replacements) of
any Lien referred to in the foregoing clauses (a) through (e) existing on the
date of the Indenture; (g) certain Liens incurred in the ordinary course of
business of the Company or (h) Liens which secure Limited Recourse Indebtedness
(as defined in the Indenture). The following types of transactions, among
others, shall not be deemed to create indebtedness secured by Liens: (i) the
sale or other transfer of crude oil, natural gas or other petroleum hydrocarbons
in place for a period of time until, or in an amount such that, the transferee
will realize therefrom a specified amount (however determined) of money or such
crude oil, natural gas or other petroleum hydrocarbons, or the sale or other
transfer of any other interest in property of the character commonly referred to
as a production payment, overriding royalty, forward sale or similar interest;
and (ii) Liens required by any contract or statute in order to permit the
Issuer, the Company or another Subsidiary to perform any contract or subcontract
made by it with or at the request of the United States government or any foreign
government or international finance agency, any state or any department thereof,
or any agency or instrumentality of either, or to secure partial, progress,
advance or other payments to the Company or any Subsidiary by any such entity
pursuant to the provisions of any contract or statute. (Section 1005)
Limitation on Sale/Leaseback Transactions
The Indenture provides that neither the Company nor any Subsidiary will
enter into any arrangement with any person (other than the Company or a
Subsidiary) providing for the leasing to the Company or a Subsidiary for a
period of more than three years of any property which has been, or is to be,
sold or transferred by the Company or such Subsidiary to such person or to any
person (other than the Company or a Subsidiary) to which funds have been or are
to be advanced by such person on the security of the leased property unless
either (a) the Issuer, the Company or such Subsidiary would be entitled,
pursuant to the provisions described under "Limitation on Liens" above, to incur
indebtedness in a principal amount equal to or exceeding the value of such
sale/leaseback transaction, secured by a Lien on the property to be leased; (b)
since the date of the Indenture and within a period commencing six months prior
to the consummation of such arrangement and ending six months after the
consummation thereof, the Issuer, the Company or such Subsidiary has expended or
will expend for any property (including amounts expended for the acquisition,
exploration, drilling or development thereof, and for additions, alterations,
improvements and repairs thereto) an amount equal to all or a portion of the net
proceeds of such arrangement and the Issuer, the Company or such Subsidiary, as
the case may be, elects to designate such amount as a credit against such
arrangement (with any such amount not being so designated to be applied as set
forth in (c) below); or (c) the Issuer, the Company or any Subsidiary, during or
immediately after the expiration of the 12 months after the effective date of
such transaction, applies to the voluntary redemption, defeasance or retirement
of the Debt Securities and its other Senior Indebtedness (as defined in the
Indenture) an amount equal to the greater of the net proceeds of the sale or
transfer of the property leased in such transaction or the fair value, in the
opinion of the board of directors of the Issuer, the Company or the Subsidiary
of such property at the time of entering into such transaction (in either case
adjusted to reflect the remaining term of the lease and any amount utilized by
the Company as set forth in (b) above), less an amount equal to the principal
amount of Senior Indebtedness voluntarily retired by the Company within such
12-month period. (Section 1006)
Exempted Indebtedness
Notwithstanding the limitations on Liens and sale/leaseback transactions
outlined above, the Issuer, the Company or any other Subsidiary may create,
assume or suffer to exist Liens or enter into sale/leaseback transactions not
otherwise permitted as described above, provided that at the time of such event,
and after giving effect thereto, the sum of outstanding indebtedness for
borrowed money incurred after the date of the Indenture and secured by such
Liens plus the attributable debt in respect of such sale/leaseback transactions
entered into after the date of the Indenture does not exceed 10 percent of
Consolidated Net Worth (as defined in the Indenture) properly appearing on a
consolidated balance sheet of the Company. (Sections 1005 and 1006)
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<PAGE> 16
Assignment
The Indenture provides that for so long as any of the Debt Securities of
the Issuer are outstanding, the Issuer may assign its obligations under any
series of Debt Securities to any other Subsidiary (the "Subsidiary Assignee")
and such Subsidiary Assignee shall be treated as the Successor to the Issuer
with respect to such series of Debt Securities, provided that the conditions set
forth under "Consolidation, Merger and Sale of Assets" below that would apply to
the merger of the Issuer into such Subsidiary Assignee are satisfied. (Section
802)
Events of Default
Unless otherwise specified in the applicable Prospectus Supplement, any one
of the following events will constitute an Event of Default under the Indenture
with respect to the Debt Securities of any series: (a) failure to pay any
interest on any Debt Security of such series when due, continued for 30 days;
(b) failure to pay principal of (or premium, if any) on the Debt Securities of
such series when due and payable, either at maturity, upon redemption or, if
applicable, at 12:00 noon on the Business Day following the Change in Control
Purchase Date; (c) failure to perform, or breach of, any other covenant or
warranty of the Issuer or the Company in the Indenture or the Debt Securities
(other than a covenant or warranty included in the Indenture solely for the
benefit of a series of securities other than the Debt Securities), continued for
60 days after written notice as provided in the Indenture; (d) the acceleration
of any Indebtedness (as defined in the Indenture) of the Issuer, the Company or
any other Subsidiary in excess of an aggregate of $25,000,000 in principal
amount under any event of default as defined in any mortgage, indenture or
instrument and such acceleration has not been rescinded or annulled within 30
days after written notice as provided in the Indenture specifying such Event of
Default and requiring the Issuer and the Company to cause such acceleration to
be rescinded or annulled; (e) failure to pay, bond or otherwise discharge within
60 days of entry, a judgment, court order or uninsured monetary damage award
against the Issuer, the Company or any other Subsidiary exceeding an aggregate
of $25,000,000 in principal amount which is not stayed on appeal or otherwise
being appropriately contested in good faith; (f) certain events of bankruptcy,
insolvency or reorganization involving the Issuer, the Company or any other
Subsidiary; and (g) any other Event of Default provided with respect to the Debt
Securities of that series. (Section 501)
If an Event of Default with respect to the Debt Securities of any series
(other than an Event of Default described in (e) or (f) of the preceding
paragraph) occurs and is continuing, either the Trustee or the holders of at
least 25 percent in aggregate principal amount of the outstanding Debt
Securities of such series by notice as provided in the Indenture may declare the
principal amount of such Debt Securities to be due and payable immediately. At
any time after a declaration of acceleration has been made, but before a
judgment or decree for payment of money has been obtained by the Trustee, and
subject to applicable law and certain other provisions of the Indenture, the
holders of a majority in aggregate principal amount of the Debt Securities of
such series may, under certain circumstances, rescind and annul such
acceleration. An Event of Default described in (e) or (f) of the preceding
paragraph shall cause the principal amount and accrued interest (or such lesser
amount as provided for in the Debt Securities of such series) to become
immediately due and payable without any declaration or other act by the Trustee
or any holder. (Section 502)
The Indenture provides that, within 90 days after the occurrence of any
Event of Default thereunder with respect to the Debt Securities of any series,
the Trustee shall transmit, in the manner set forth in the Indenture, notice of
such Event of Default to the holders of the Debt Securities of such series
unless such Event of Default has been cured or waived; provided, however, that
except in the case of a default in the payment of principal of, or premium, if
any, or interest, if any, or Additional Amounts, if any, on any Debt Security of
such series, the Trustee may withhold such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers (as defined in the Indenture) of the Trustee have in good
faith determined that the withholding of such notice is in the interest of the
holders of Debt Securities of such series. (Section 602)
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If an Event of Default occurs and is continuing with respect to the Debt
Securities of any series, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the holders of Debt Securities of such
series by all appropriate judicial proceedings. (Section 504)
The Indenture provides that, subject to the duty of the Trustee during any
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the holders of Debt Securities, unless such
holders shall have offered to the Trustee reasonable indemnity. (Section 601)
Subject to such provisions for the indemnification of the Trustee, and
subject to applicable law and certain other provisions of the Indenture, the
holders of a majority in aggregate principal amount of the outstanding Debt
Securities of a series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of such series. (Section 512)
Assumption by the Company
The Company may, at its option, assume the obligations of the Issuer as
obligor under any series of Debt Securities, provided that:
(a) the Company shall expressly assume such obligations in an
assumption agreement or supplemental indenture duly executed and delivered
to the Trustee in form reasonably satisfactory to Trustee;
(b) immediately after giving effect to such assumption, no Event of
Default and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(c) the Company shall expressly agree in an assumption agreement or
supplemental indenture to immediately indemnify (pursuant to the procedure
described below under "Indemnification Procedure") the holder of each Debt
Security against (i) any tax, assessment or governmental charge imposed on
such holder or required to be withheld or deducted from any payment to such
holder (including any governmental charge or withholding tax attributable
to the Company's indemnifying such holder) as a consequence of such
assumption, and (ii) any costs or expenses of such assumption (except that
if the Company delivers an opinion of an independent counsel or a tax
consultant of recognized standing that the holders will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such assumption, a holder will have such rights to
indemnification only if and when gain for United States federal income tax
purposes is actually imposed on such holder).
Upon any such assumption, the Company shall succeed to, and be substituted
for, and may exercise any right and power of, the Issuer under such series of
Debt Securities and the Indenture with the same effect as if the Company had
been the Issuer thereof, and the Issuer shall be released from its liability as
obligor under such series of Debt Securities. (Section 804)
See "Certain Tax Considerations -- United States Federal Income Tax
Considerations -- Taxation of Dispositions" for a discussion of certain
potential United States federal income tax consequences of an assumption of the
Debt Securities pursuant to this provision.
Indemnification Procedure
If a transaction described under "Consolidation, Merger and Sale of Assets"
or "Assumption by the Company" (an "Indemnifiable Transaction") should
constitute a taxable event for United States federal income tax purposes, the
Company or any Person (as defined in the Indenture), as the case may be, must
indemnify a holder of a Debt Security against any tax, assessment, or
governmental charge imposed on such holder or required to be withheld or
deducted from any payment to such holder (including any governmental charge or
withholding attributable to an indemnification payment made by
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or on behalf of the Company or any Person) and any other tax costs or tax
expenses attributable to such Indemnifiable Transaction. In satisfying such
indemnification obligation, the Company or any such Person, as the case may be,
shall comply with the indemnification procedures below. (Section 805)
Unless the Company or any such Person, as the case may be, delivers to the
Trustee by the date of an Indemnifiable Transaction (as defined in the
Indenture) an opinion of an independent counsel or a tax consultant of
recognized standing to the effect that such Indemnifiable Transaction will not
be a taxable event for United States federal income tax purposes, the Company or
any such Person, as the case may be, shall send to each holder of a Debt
Security on or prior to the date of such Indemnifiable Transaction (a)
notification explaining the United States federal income tax consequences to
such holder of such Indemnifiable Transaction and (b) an indemnification claim
requesting (i) information concerning such holder's tax basis and holding period
in a Debt Security; (ii) a statement that such holder is not an entity that is
exempt from United States federal income tax as described in Section 501 of the
Code; and (iii) setting forth the address to which such holder must remit such
form. If the Company or any such Person delivers such an Opinion, such holder
will have the indemnification rights described herein only if and when gain for
United States federal income tax purposes is actually imposed on such holder.
When the Company or any Person, as the case may be, receives from a holder
of a Debt Security an indemnification claim form, the Company or any such
Person, as the case may, shall within 15 business days remit to such holder a
certified check in an amount equal to the sum of (a) the product of any gain
recognized as a result of the Indemnifiable Transaction and the highest marginal
tax rate in effect at the time of such Indemnifiable Transaction (the
"Indemnification Amount") and (b) the product of the Indemnification Amount and
such tax rate. For these purposes, a holder's gain shall equal the amount by
which the fair market value of a Debt Security at the time of such Indemnifiable
Transaction exceeds such holder's adjusted tax basis in such Debt Security.
Issuer's Obligation to Purchase Debt Securities on Change in Control
Upon the occurrence of a "Change in Control" as defined in the Indenture,
the Issuer shall mail within 15 days of the occurrence of such Change in Control
written notice regarding such Change in Control to the Trustee of the Debt
Securities of each series and to every holder thereof, after which the Issuer
shall be obligated, at the election of each holder thereof, to purchase such
Debt Securities. Under the Indenture, a "Change in Control" is deemed to occur
upon (a) the occurrence of any event requiring the filing of any report under or
in response to Schedule 13D or 14D-1 pursuant to the Exchange Act disclosing
beneficial ownership of either (i) 50 percent or more of the Company's Common
Stock then outstanding, or (ii) 50 percent or more of the voting power of the
voting stock of the Company then outstanding, (b) the consummation of sale,
transfer, lease, or conveyance of the Company's properties and assets
substantially as an entirety to any Person or Persons who are not Subsidiaries
of the Company; and (c) the consummation of any consolidation of the Company
with or merger of the Company into any other Person in a transaction in which
either (i) the Company is not the sole surviving corporation or (ii) Common
Stock existing prior to such transaction is converted into cash, securities or
other property and those exchanging the Company's Common Stock do not receive
either (x) 75 percent or more of the survivor's common stock or (y) 75 percent
or more of the voting power of the survivor's voting stock, following the
consummation of such transaction. The notice to be sent to every Trustee and
holder upon a Change in Control shall, in addition, be published at least once
in an Authorized Newspaper (as defined in the Indenture) and shall state (a) the
event causing the Change in Control and the date thereof, (b) the date by which
notice of such Change in Control is required by the Indenture to be given, (c)
the date (which date shall be 35 business days after the occurrence of the
Change in Control) by which the Issuer shall purchase Debt Securities to be
purchased pursuant to the selling holder's exercise of rights on Change in
Control (the "Change in Control Purchase Date"), (d) the price specified in such
Debt Securities for their purchase by the Issuer (the "Change in Control
Purchase Price"), (e) the name and address of the Trustee, (f) the procedure for
surrendering Debt Securities to the Trustee or other designated office or agent
for payment, (g) a statement of the Issuer's obligation to make prompt payment
on proper surrender of such Debt Securities, (h) the procedure for
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holders' exercise of rights of sale of such Debt Securities by delivery of a
"Change in Control Purchase Notice," and (i) the procedures for withdrawing a
Change in Control Purchase Notice. No purchase of any Debt Securities shall be
made if there has occurred and is continuing an Event of Default under the
Indenture (other than default in payment of the Change in Control Purchase
Price). In connection with any purchase of Debt Securities under this paragraph,
the Issuer will comply with all Federal and state securities laws, including,
specifically, Rule 13E-4, if applicable, of the Exchange Act, and any related
Schedule 13E-4 required to be submitted under such Rule. (Section 1501)
Discharge, Defeasance and Covenant Defeasance
The Issuer or the Company may discharge certain obligations to holders of
any series of Debt Securities that have not already been delivered to the
Trustee for cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption within one
year) by depositing with the Trustee, in trust, funds in U.S. dollars or in the
Foreign Currency in which such Debt Securities are payable in an amount
sufficient to pay the entire indebtedness on such Debt Securities with respect
to principal (and premium, if any) and interest to the date of such deposit (if
such Debt Securities have become due and payable) or to the Maturity thereof, as
the case may be. (Section 401)
The Indenture provides that, unless the provisions of Section 402 thereof
are made inapplicable to the Debt Securities of or within any series pursuant to
Section 301 thereof, the Issuer or the Company may elect either (a) to defease
and be discharged from any and all obligations with respect to such Debt
Securities (except for, among other things, the obligation to pay Additional
Amounts, if any upon the occurrence of certain events of taxation, assessment or
governmental charge with respect to payments on such Debt Securities and other
obligations to register the transfer or exchange of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to
maintain an office or agency with respect to such Debt Securities and to hold
moneys for payment in trust) ("defeasance") (Section 402(2)) or (b) to be
released from its obligations with respect to such Debt Securities under the
covenants described in "Limitation on Liens" and "Limitation on Sale/Leaseback
Transactions" above or, if provided pursuant to Section 301 of the Indenture,
its obligations with respect to any other covenant, and any omission to comply
with such obligations shall not constitute a default or an Event of Default with
respect to such Debt Securities ("covenant defeasance"). (Section 402(3))
Defeasance or covenant defeasance, as the case may be, shall be conditioned upon
the irrevocable deposit by the Issuer or the Company with the Trustee, as trust
funds in trust of an amount, in U.S. dollars or in the Foreign Currency in which
such Debt Securities are payable at Stated Maturity, or Government Obligations
(as defined below), or both, applicable to such Debt Securities which through
the scheduled payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal of (and premium,
if any) and interest on such Debt Securities on the scheduled due dates
therefor. (Section 402(4))
Such a trust may only be established if, among other things, (i) the
applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the Indenture or any other material
agreement or instrument to which the Issuer or the Company is a party or by
which any of them is bound, (ii) no default or Event of Default with respect to
the Debt Securities to be defeased shall have occurred and be continuing on the
date of the establishment of such a trust and (iii) the Issuer or the Company
has delivered to the Trustee an Opinion of Counsel (as specified in the
Indenture) to the effect that the holders of such Debt Securities will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred, and such Opinion of Counsel, in the case of defeasance, must refer to
and be based upon a letter ruling of the Internal Revenue Service received by
the Company, a Revenue Ruling published by the Internal Revenue Service or a
change in applicable U.S. federal income tax law occurring after the date of the
Indenture. (Section 402(4)(b) and (c))
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"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments. (Section 101)
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government or the governments in the
confederation which issued the Foreign Currency in which the Debt Securities of
a particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America or
such government or governments which issued the Foreign Currency in which the
Debt Securities of such series are payable, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, which, in the case of
clauses (i) and (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or any other amount with
respect to any such Government Obligation held by such custodian for the account
of the holder of such 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 with respect to the Government Obligation or the specific payment of
interest on or principal of or any other amount with respect to the Government
Obligation evidenced by such depository receipt. (Section 101)
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Issuer or the Company has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of the Indenture or the terms of such Debt
Security to receive payment in a currency other than that in which such deposit
has been made in respect of such Debt Security, or (b) a Conversion Event (as
defined below) occurs in respect of the Foreign Currency in which such deposit
has been made, the indebtedness represented by such Debt Security shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any) and interest, if any, on such
Debt Security as such Debt Security becomes due out of the proceeds yielded by
converting the amount or other properties so deposited in respect of such Debt
Security into the currency in which such Debt Security becomes payable as a
result of such election or such Conversion Event based on (x) in the case of
payments made pursuant to clause (a) above, the applicable market exchange rate
for such currency in effect on the second business day prior to such payment
date, or (y) with respect to a Conversion Event, the applicable market exchange
rate for such Foreign Currency in effect (as nearly as feasible) at the time of
the Conversion Event. (Section 402(5))
"Conversion Event" means the cessation of use of (i) a Foreign Currency
other than the ECU both by the government of the country or the confederation
which issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Union or (iii) any currency unit or composite currency other than the ECU for
the purposes for which it was established. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium, if
any) and interest on any Debt Security that are payable in a Foreign Currency
that ceases to be used by the government or confederation of issuance shall be
made in U.S. dollars. (Section 101)
In the event the Issuer or the Company effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are declared due and
payable because of the occurrence of any Event of Default other than an Event of
Default with respect to Sections 1005 and 1006 of the Indenture (which Sections
would no longer be applicable to such Debt Securities after such covenant
defeasance) or with respect to any other covenant as to which there has been
covenant defeasance, the amount in such Foreign Currency in which such Debt
Securities are payable, and Government Obligations on deposit with the Trustee,
will be sufficient to pay amounts due on such Debt Securities at the time of the
Stated Maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the
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acceleration resulting from such Event of Default. However, the Issuer or the
Company would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
Under the Indenture, the Issuer and the Company are required to furnish to
the Trustee annually a statement as to performance by the Issuer and the Company
of certain of their respective obligations under the Indenture and as to any
default in such performance. The Issuer and the Company are also required to
deliver to the Trustee, within five days after occurrence thereof, written
notice of any event which after notice or lapse of time or both would constitute
an Event of Default. (Section 1009)
Modification and Waiver
Modifications and amendments of the Indenture may be made by the Issuer,
the Company and the Trustee with the consent of the holders of not less than
66 2/3 percent of the aggregate principal amount of the Debt Securities of each
series affected thereby; provided, however, that no such modification or
amendment may, without the consent of the holder of each Debt Security affected
thereby, (a) change the Stated Maturity of the principal of, or premium, if any,
on, or any installment of principal, if any, of or interest on, or any
Additional Amounts with respect to, any Debt Security, (b) reduce the principal
amount of, or premium or interest on, or any Additional Amounts with respect to
any Debt Security, (c) change the coin or currency in which any Debt Security or
any premium or any interest thereon or any Additional Amounts with respect
thereto is payable, (d) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity of any Debt Securities (or, in
the case of redemption, on or after the Redemption Date or, in the case of
repayment at the option of any holder, on or after the date for repayment or in
the case of a change in control, after the change in control purchase date), (e)
reduce the percentage and principal amount of the outstanding Debt Securities,
the consent of whose holders is required in order to take certain actions, (f)
change any obligation of the Issuer or the Company to maintain an office or
agency in the places and for the purposes required by the Indenture, (g) modify
or affect in any manner adverse to the holders of the Debt Securities the terms
and conditions of the obligations of the Issuer under the Debt Securities, and
of the Company under the Guarantees, in respect of the due and punctual payment
of principal of, or any premium or interest on, the Debt Securities, or (h)
modify any of the above provisions. (Section 902)
The holders of at least a majority in aggregate principal amount of Debt
Securities of any series may, on behalf of the holders of all Debt Securities of
such series, waive compliance by the Issuer or the Company with certain
restrictive provisions of the Indenture. (Section 1008) The holders of not less
than a majority in aggregate principal amount of Debt Securities of any series
may, on behalf of all holders of Debt Securities of such series, waive any past
default and its consequences under the Indenture with respect to the Debt
Securities of such series, except a default (a) in the payment of principal of
(or premium, if any) or any interest on or any Additional Amounts with respect
to Debt Securities of such series or (b) in respect of a covenant or provision
of the Indenture that cannot be modified or amended without the consent of the
holder of each Debt Security of any series. (Section 513)
Consolidation, Merger and Sale of Assets
The Company may, without the consent of the holders of the Debt Securities,
consolidate or merge with or into, or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to, any Person that is
organized and validly existing under the laws of any domestic jurisdiction, or
may permit any such Person to consolidate with or merge into the Company or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Company, provided that any successor Person
assumes the Company's obligations on the Debt Securities and under the
Guarantees and the Indenture, that after giving effect to the transaction no
Event of Default, and no event
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which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing, and that certain other conditions are
met. (Section 801)
The Issuer may, without the consent of the holders of the Debt Securities,
consolidate or merge into, or convey, transfer or lease its properties and
assets substantially as an entirety to, any Person organized and validly
existing under the laws of the jurisdiction of organization of such Person, or
may permit any such Person to consolidate with or merge into the Issuer or
convey, transfer or lease its properties and assets substantially as an entirety
to the Issuer, provided that (a) any successor Person assumes the Issuer's
obligations on the Debt Securities and under the Indenture (including any
obligation to pay any Additional Amounts), (b) immediately after giving effect
to such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing, and (c) any such successor Person shall expressly agree by a
supplemental indenture (i) to immediately indemnify (pursuant to the procedure
described above under "-- Indemnification Procedure") the holder of each Debt
Security against (A) any tax, assessment or governmental charge imposed on such
holder or required to be withheld or deducted from any payment to such holder as
a consequence of such consolidation, merger, conveyance, transfer or lease, and
(B) any other tax costs or other tax expenses of the act of such consolidation,
merger, conveyance, transfer or lease (except that if the Issuer or any such
Person delivers an opinion of an independent counsel or a tax consultant of
recognized standing that the holder will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such transaction, a holder will
have such right to indemnification only if and when gain for U.S. federal income
tax purposes is actually imposed on such holder), and (ii) that all payments
pursuant to the Debt Securities in respect of the principal of and any premium
and interest on the Debt Securities, as the case may be, shall be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed or levied
by or on behalf of the jurisdiction of organization of such successor Person or
any political subdivision or taxing authority thereof or therein, unless such
taxes, duties, assessments or governmental charges are required by such
jurisdiction or any such subdivision or authority to be withheld or deducted, in
which case such successor Person will pay such additional amounts of, or in
respect of, principal and any premium and interest ("Successor Additional
Amounts") as will result (after deduction of such taxes, duties, assessments or
governmental charges and any additional taxes, duties, assessments or
governmental charges payable in respect of such) in the payment to each holder
of a Debt Security of the amounts which would have been payable pursuant to the
Debt Securities had no such withholding or deduction been required, subject to
the same exceptions as would apply with respect to the payment by the Issuer of
Additional Amounts in respect of the Debt Securities (see "--Payment of
Additional Amounts"). (Section 802)
Payment of Additional Amounts
All payments of, or in respect of, principal of and any premium and
interest on any Debt Securities issued by the Issuer shall be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, levies, assessments or governmental charges of whatever nature imposed
or levied by or on behalf of the jurisdiction (or any political subdivision or
taxing authority thereof or therein) in which the Issuer is incorporated or
resident (or deemed for tax purposes to be resident) (the "applicable taxing
jurisdiction"), unless such taxes, duties, levies, assessments or governmental
charges are required by the applicable taxing jurisdiction or any such
subdivision or authority to be withheld or deducted. In that event, the Issuer
will pay by way of additional interest such additional amounts of, or in respect
of, principal of and any premium and interest ("Additional Amounts") as will
result (after deduction of such taxes, duties, levies, assessments or
governmental charges and any additional taxes, duties, levies, assessments or
governmental charges payable in respect of such Additional Amounts) in the
payment to each holder of such Debt Securities of the amounts which would have
been payable in
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respect of such Debt Securities had no such withholding or deduction been
required (Section 1004), except that no Additional Amounts shall be so payable
for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such holder:
(i) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically
present in, the applicable taxing jurisdiction or otherwise had some
connection with the applicable taxing jurisdiction other than the mere
ownership of such Debt Security;
(ii) presented (if presentation is required) such Debt Security for
payment in the applicable taxing jurisdiction, unless such Debt Security
could not have been presented for payment elsewhere;
(iii) presented (if presentation is required) such Debt Security
more than 30 days after the date on which the payment in respect of such
Debt Security first became due and payable or provided for, whichever is
later, except to the extent that the holder would have been entitled to
such Additional Amounts if it had presented such Debt Security for
payment on any days within such period of 30 days;
(iv) is, directly or indirectly, taken to be an Associate of the
Issuer; or
(v) entered into or participated in a scheme to avoid Australian
interest withholding tax, being a scheme which the Issuer was neither a
party to nor participated in, in respect of which the Australian
Commissioner of Taxation has made a determination that Australian
interest withholding tax is payable in respect of the amount;
(b) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of, or in respect
of, principal of or any premium or interest on the Debt Securities;
(d) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the holder or the
beneficial owner of a Debt Security with a request of the Issuer addressed
to the holder (i) to provide information concerning the nationality,
residence or identity of the holder or such beneficial owner or (ii) to
make any declaration or other similar claim or satisfy any information or
reporting requirement, which, in the case of (i) or (ii), is required or
imposed by a statute, treaty, regulation or administrative practice of the
applicable taxing jurisdiction as a precondition to exemption from all or
part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b), (c) and (d);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or any premium or interest on any such Debt Security to any holder
who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent such payment would be required by the laws of the
applicable taxing jurisdiction to be included in the income for tax purposes of
a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to such
Additional Amounts had it been the holder of the Debt Security.
Whenever there is mentioned, in any context, the payment of principal of,
or any premium or interest on, or in respect of, any Debt Securities of any
series issued by the Issuer or the net proceeds received on the sale or exchange
of any Debt Security of any series issued by the Issuer, such mention shall be
deemed to include mention of the payment of Additional Amounts provided for in
the Indenture to the
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extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the Indenture.
Redemption for Taxation Reasons
If as the result of any change in or any amendment to the laws, regulations
or published tax rulings of the applicable taxing jurisdiction affecting
taxation, or any change in the official administration, application or
interpretation of such laws, regulations or published tax rulings either
generally or in relation to any Debt Securities issued by the Issuer, which
change or amendment becomes effective on or after the original issue date of
such Debt Securities or which change in official administration, application or
interpretation shall not have been available to the public prior to such issue
date, it is determined by the Issuer that (a) the Issuer would be required to
pay any Additional Amounts pursuant to the Indenture or the terms of any Debt
Security (i) in respect of interest, on the next succeeding Interest Payment
Date or (ii) in respect of the principal of any Discounted Securities on the
date of such determination, assuming that a payment in respect of such principal
were required to be made on such date under the terms of the Debt Securities,
and (b) such obligation cannot be avoided by the Company or the Issuer taking
reasonable measures available to it, in either case (i) or (ii) above the Issuer
may, at its option, redeem all (but not less than all) of the Debt Securities of
any series in respect of which such Additional Amounts would be so payable at
any time, upon not less than 30 nor more than 60 days' written notice as
provided in the Indenture, at a Redemption Price equal to 100 percent of the
principal amount thereof plus accrued interest to the date fixed for redemption
(except that any such Debt Securities that are Outstanding Discounted Securities
may be redeemed at the Redemption Price specified in the terms thereof);
provided, however, that (a) no such notice of redemption may be given earlier
than 60 days prior to the earliest date on which the Issuer would be obligated
to pay such Additional Amounts were a payment then due in respect of the Debt
Securities, and (b) at the time any such redemption notice is given, such
obligation to pay such Additional Amounts must remain in effect. If (a) the
Issuer shall have on any date (the "Succession Date") consolidated with or
merged into, or conveyed or transferred or leased its properties and assets as
an entirety or substantially as an entirety to, any Successor referred to under
"-- Consolidation, Merger and Sale of Assets" above which is organized under the
laws of any jurisdiction other than the United States of America, any State
thereof or the District of Columbia or the jurisdiction in which the Issuer is
organized, (b) as the result of any change in or any amendment to the laws,
regulations or published tax rulings of such jurisdiction or organization, or of
any political subdivision or taxing authority thereof or therein, affecting
taxation, or any change in the official administration, application or
interpretation of such laws, regulations or published tax rulings either
generally or in relation to any particular Debt Securities, which change or
amendment becomes effective on or after the Succession Date or which change in
official administration, application or interpretation shall not have been
available to the public prior to such Succession Date and is notified to the
Issuer, such Successor would be required to pay any Successor Additional Amounts
(as defined under "-- Consolidation, Merger and Sale of Assets" above) pursuant
to the Indenture or the terms of any Debt Securities (i) in respect of interest
on any Debt Securities on the next succeeding Interest Payment Date, or (ii) in
respect of the principal of any Discounted Securities on the date of such
determination (assuming such principal were required to be paid on such date
under the terms of the Debt Securities) and (c) such obligation cannot be
avoided by the Company, the Issuer or such Successor taking reasonable measures
available to it, the Issuer or such Successor may at its option, redeem all (but
not less than all) of the Debt Securities of any series in respect of which such
Successor Additional Amounts would be so payable at any time, upon not less than
30 nor more than 60 days' written notice as provided in the Indenture, at a
Redemption Price equal to 100 percent of the principal amount thereof plus
accrued interest to the date fixed for redemption (except that any such Debt
Securities that are Outstanding Discounted Securities may be redeemed at the
Redemption Price specified in the terms thereof); provided, however, that (a) no
such notice of redemption may be given earlier than 60 days prior to the
earliest date on which a Successor would be obligated to pay such Successor
Additional Amounts were a payment then due in respect of the Debt Securities,
and (b) at the time any such redemption notice is given, such obligation to pay
such Successor Additional Amounts must remain in effect.
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Concerning the Trustee
Unless otherwise specified in the applicable Prospectus Supplement, The
Chase Manhattan Bank, New York, New York will be the Trustee under the
Indenture.
Service of Process
The Indenture provides that the Issuer will irrevocably appoint CT
Corporation System, 1633 Broadway, New York, New York 10019, as its agent for
service of process in any suit, action or proceeding with respect to the
Indenture, the Debt Securities or the Guarantees issued thereunder and for
actions brought under the federal or state securities laws brought in any
federal or state court located in New York City, and submit to such
jurisdiction.
Governing Law
The Indenture, the Debt Securities and the Guarantees will be governed by
and construed in accordance with the laws of the State of New York, but without
regard to the principles of conflicts of laws thereof, except as may otherwise
be required by mandatory provisions of law and except that all matters governing
the authorization and execution of the Indenture and the Debt Securities by the
Issuer will be governed by and construed in accordance with the laws of the
jurisdiction of incorporation of the Issuer.
DTC BOOK-ENTRY-ONLY SYSTEM
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be registered under a book-entry-only system maintained by
DTC. The book-entry-only system will evidence ownership interests in the Debt
Securities in book-entry-only form. Purchasers of ownership interests in the
Debt Securities will not receive certificates representing their interests in
the Debt Securities purchased. Transfers of ownership interests will be effected
on the records of DTC and its participating organizations (the "DTC
Participants") pursuant to rules and procedures established by DTC.
Certain of the following information concerning the procedures and record
keeping with respect to ownership interests in the Debt Securities, payment of
interest and other payments on the Debt Securities to DTC Participants or
Beneficial Owners (as hereafter defined), confirmation and transfer of ownership
interests in the Debt Securities and other related transactions by and between
DTC, the DTC Participants and Beneficial Owners is based solely on information
contained in a published report of DTC.
DTC, an automated clearinghouse for securities transactions, will act as
securities depository for the Debt Securities. DTC is a limited-purpose trust
company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered pursuant to the
provisions of Section 17A of the 1934 Act. DTC was created to hold securities of
the DTC Participants and to facilitate the clearance and settlement of
securities transactions among DTC Participants in such securities through
electronic book-entry changes in accounts of the DTC Participants, thereby
eliminating the need for physical movement of security certificates. DTC
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations, some of which (and/or
their representatives) own DTC. Access to the DTC system is also available to
others such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a DTC Participant, either directly or
indirectly (the "Indirect Participants"). The rules applicable to DTC and DTC
Participants are on file with the SEC.
The ownership of fully-registered Debt Securities in the form of global
bonds or notes will be registered in the name of Cede & Co., as nominee for DTC.
Ownership interests in the Debt Securities may be purchased by or through DTC
Participants and will be recorded on the records of the DTC Participants, whose
interests in turn will be recorded on a computerized book-entry-only system
operated by DTC. Such DTC Participants and the person for whom they acquire
interests in the Debt Securities as
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nominees ("Beneficial Owner") will not receive Debt Security certificates, but
each such DTC Participant will receive a credit balance in the records of DTC in
the amount of such DTC Participant's interest in the Debt Securities, which will
be confirmed in accordance with DTC's standard procedures. Each such Beneficial
Owner for whom a DTC Participant acquires an interest in the Debt Securities, as
nominee, may desire to make arrangements with such DTC Participant to have all
communications of the Company and the Trustee to DTC which may affect such
Beneficial Owner forwarded in writing by such DTC Participant and to have
notifications made of all payments of principal and interest with respect to his
beneficial interest. The Issuer, the Company and the Trustee will treat DTC (or
its nominee) as the sole and exclusive owner of the Debt Securities registered
in its name for the purposes of payment of the principal and interest on the
Debt Securities, giving any notice permitted or required to be given to holders
under the Indenture, registering the transfer of Debt Securities, and for all
other purposes whatsoever, and shall not be affected by any notice to the
contrary. Neither the Issuer, the Company nor the Trustee shall have any
responsibility or obligation to any DTC Participant, any person claiming a
beneficial ownership interest in the Debt Securities under or through DTC or any
DTC Participant, or any other person which is not shown on the registration
books of the Trustee as being a holder, with respect to: (i) the accuracy of any
records maintained by DTC or any DTC Participant; (ii) the payment by DTC or any
DTC Participant of any amount in respect of the principal or interest on the
Debt Securities; (iii) any notice which is permitted or required to be given to
holders thereunder or under the conditions to transfers or exchanges adopted by
the Issuer or Company; or (iv) any other action taken by DTC as a holder.
Principal and interest on the Debt Securities will be paid by the Trustee.
Disbursement of such payments to the DTC Participants is the responsibility of
DTC and disbursement of such payments to the Beneficial Owners is the
responsibility of the DTC Participants or the Indirect Participants. NEITHER THE
ISSUER, THE COMPANY NOR THE TRUSTEE WILL HAVE ANY RESPONSIBILITY OR OBLIGATIONS
TO SUCH DTC PARTICIPANTS OR THE PERSONS FOR WHOM THEY ACT AS NOMINEES WITH
RESPECT TO THE PAYMENTS TO OR THE PROVIDING OF NOTICE FOR THE DTC PARTICIPANTS,
OR THE INDIRECT PARTICIPANTS, OR THE BENEFICIAL OWNERS SO LONG AS CEDE & CO., AS
NOMINEE OF DTC, IS THE REGISTERED OWNER OF THE DEBT SECURITIES, REFERENCES
HEREIN TO THE SECURITY HOLDERS OR REGISTERED OWNERS OF THE DEBT SECURITIES SHALL
MEAN CEDE & CO., AND SHALL NOT MEAN THE BENEFICIAL OWNERS.
For every transfer and exchange of beneficial ownership of Debt Securities,
a Beneficial Owner may be charged a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in relation thereto.
When reference is made to any action which is required or permitted to be
taken by the Beneficial Owners, such reference shall only relate to action by
such Beneficial Owner, or others permitted to act (by statute, regulation or
otherwise) on behalf of such Beneficial Owners for such purposes. When notices
are given, they shall be sent by the Trustee to DTC only. Conveyance of notices
and other communications by DTC to DTC Participants and Indirect Participants
and in turn by DTC Participants and Indirect Participants to Beneficial Owners
will be governed by arrangements among them, subject to any statutory and
regulatory requirements then in effect.
Principal and interest payments on the Debt Securities will be made to DTC
or its nominee, Cede & Co., as registered owner of the Debt Securities. Upon
receipt of any such payments, DTC's current practice is to immediately credit
the accounts of the DTC Participants in accordance with their respective
holdings shown on the records of DTC. Payments by DTC Participants and Indirect
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such DTC Participant or Indirect Participant.
DTC may determine to discontinue providing its services with respect to the
Debt Securities at any time by giving notice to the Issuer or the Company and
discharging its responsibilities with respect thereto under applicable law. In
addition, the Issuer or the Company may determine that continuation of the
system of book-entry-only transfers through DTC (or a successor securities
depository) is not in the best interests of the Beneficial Owners or is
burdensome to the Issuer or the Company. If for either reason
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the book-entry-only system is discontinued, certificates for the Debt Securities
will be delivered to the Beneficial Owners thereof.
Certain of the information contained in this sub-section has been extracted
from a report from DTC. No representation is made by the Issuer or the Company
as to the completeness or the accuracy of such information or as to the absence
of material adverse changes in such information subsequent to the date hereof.
Same-Day Settlement and Payment
Unless otherwise indicated in the applicable Prospectus Supplement,
settlement for the Debt Securities will be made by a purchaser in immediately
available funds. While the Debt Securities are in the book-entry-only system
described above, all payments of principal and interest will be made by the
Trustee on behalf of the Issuer or the Company to DTC in immediately available
funds.
Secondary trading in long-term debt securities is generally settled in
clearing-house or next-day funds. Unless otherwise set forth in the applicable
Prospectus Supplement, while the Debt Securities are in the book-entry-only
system described above, they will trade in DTC's Same-Day Fund Settlement System
until maturity. During such period, secondary market trading activity in the
Debt Securities will settle in immediately available funds. No assurance can be
given as to the effect, if any, of settlement in immediately available funds on
the trading activity in the Debt Securities.
CERTAIN TAX CONSIDERATIONS
The following summary of certain United States federal income and
Australian tax consequences of the purchase, ownership and disposition of the
Debt Securities is based upon laws, regulations, rulings and decisions now in
effect, all of which are subject to change or possible differing
interpretations. It deals only with Debt Securities held as capital assets and
does not purport to address all aspects of United States federal income or
Australian taxes that may be relevant to an investment in the Debt Securities,
nor does it address the United States or Australian tax treatment applicable to
persons in special tax situations, such as financial institutions, insurance
companies, regulated investment companies, dealers in securities or currencies,
persons holding Debt Securities as a hedge against currency risks or as a
position in a "straddle" for tax purposes, or persons whose functional currency
is not the United States dollar. It also does not deal with holders other than
original purchasers (except where otherwise specifically noted). Persons
considering the purchase of the Debt Securities should consult their own tax
advisors concerning the application of United States federal income and
Australian tax laws to their particular situations as well as any consequences
of the purchase, ownership and disposition of the Debt Securities arising under
the laws of any other taxing jurisdiction.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The statements below regarding United States federal tax consequences are
based upon the provisions of the United States Internal Revenue Code of 1986, as
amended (the "Code") and regulations, rulings and judicial decisions thereunder
as of the date of this Prospectus. Such authorities may be repealed, revoked or
modified, in which case tax consequences different from those discussed below
could result.
As used herein, the term "U.S. holder" means a beneficial owner of a Debt
Security that is for United States federal income tax purposes (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States or of any
political subdivision thereof (other than a partnership that is not treated as a
United States person under any applicable Treasury regulations), (iii) an estate
the income of which is subject to United States federal income taxation
regardless of its source, (iv) a trust if a court within the United States is
able to exercise primary supervision of the administration of the trust and one
or more United States persons have the authority to control all substantial
decisions of the trust, or (v) any other person whose income or gain in
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respect of a Debt Security is effectively connected with the conduct of a United
States trade or business. Notwithstanding the preceding clause (iv), to the
extent provided in regulations, certain trusts in existence on August 20, 1996
and treated as United States persons prior to such date that elect to continue
to be so treated also shall be considered U.S. holders. As used herein, the term
"non-U.S. holder" means a holder of a Debt Security that is not a U.S. holder.
The following summary of United States federal income tax considerations is
based on the advice of Woodard, Hall & Primm, P.C., Houston, Texas, special tax
counsel to the Company, whose opinion is set forth herein.
Taxation of Interest. The gross amount of interest (including Additional
Amounts, if any, accrued or received in respect of the Debt Securities)
generally will be includible in the gross income of a U.S. holder and such
income generally will be treated as foreign source passive income for United
States federal income tax purposes. If any foreign source taxes were to be paid
or withheld in respect of payments on the Debt Securities, a U.S. holder may be
eligible, subject to a number of complex limitations, for a foreign tax credit.
Taxation of Dispositions. A U.S. holder that owns the Debt Securities as
capital assets will recognize gain or loss for United States federal income tax
purposes upon the sale or other disposition of the Debt Securities in an amount
equal to the difference between the amount realized and the U.S. holder's tax
basis in the Debt Securities. Gain or loss recognized by a U.S. holder on a sale
or other disposition of the Debt Securities will be (i) mid-term if the Debt
Securities have been held for 18 months or less, but more than one year, or (ii)
long-term if the Debt Securities have been held for more than 18 months.
A U.S. holder of a Debt Security may recognize gain or loss for United
States federal income tax purposes equal to the difference between the fair
market value of the Debt Security and such U.S. holder's adjusted tax basis in
such Debt Security in the event that (a) the Issuer consolidates with or merges
into any other Person or conveys, transfers or leases its properties and assets
substantially as an entirety to any other Person, (b) the Company assumes the
obligations of the Issuer under any series of Debt Securities, (c) the Issuer
consolidates or merges into any other Person, (d) the Issuer exercises its
option to redeem the Debt Securities or (e) the Issuer assigns its obligations
under any series of Debt Securities to any other Person. Additionally, a U.S.
holder will recognize on disposition of a Debt Security the amount of any
accrued but unpaid interest and the amount of any market discount associated
with such Debt Security. The Indenture provides that, where a U.S. holder (other
than entities then exempt from taxation under Section 501 of the Code)
recognizes gain for United States federal income tax purposes as a result of
such a merger or assumption, any such Person (in the case of (b) or (c)) or the
Company (in the case of (b)) shall indemnify such U.S. holder of a Debt Security
in an amount equal to the sum of (i) the Indemnification Amount and (ii) the
product of the Indemnification Amount and the highest marginal tax rate in
effect at the time of such above-described transaction. For a description of the
procedures by which a U.S. holder may exercise its indemnification rights, see
"Description of Debt Securities and Guarantees -- Indemnification Procedure."
Original Issue Discount. The Debt Securities may be issued with original
issue discount for United States federal income tax purposes. U.S. holders of
the Debt Securities will be required to include original issue discount in gross
income as it accrues, on a constant-yield basis, regardless of their method of
accounting.
The amount of the original issue discount in the Debt Securities will be
the difference between the stated redemption price at maturity and the issue
price of the Debt Securities. The "issue price" of the Debt Securities will be
the price at which a substantial amount of the Debt Securities are sold to the
public for cash (excluding sales to bond houses, brokers or similar persons or
organizations acting in the capacity as underwriters, placement agents or
wholesalers).
The "stated redemption price" at maturity of a debt instrument is the total
of all payments to be made on the instrument other than payments of qualified
stated interest. "Qualified stated interest" includes only interest that is
unconditionally payable in cash or property (other than debt instruments of
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the Issuer) at least annually at a single fixed rate that appropriately takes
into account the length of the interval between payments.
Holders of the Debt Securities must include in gross income, as interest,
the daily portions of original issue discount for each day during the taxable
year on which the Debt Securities were held. The daily portions of the original
issue discount will be determined by allocating to each day in each accrual
period the ratable portion of the original issue discount allocable to that
period. (The accrual periods may be of any length and may vary in length over
the term of a debt instrument, provided that each accrual period is no longer
than one year, and each scheduled payment of interest or principal occurs on
either the final day or the first day of an accrual period.) The original issue
discount allocable to an accrual period will equal the product of the adjusted
issue price of the Debt Securities at the beginning of the accrual period and
the Debt Securities' yield to maturity. The adjusted issue price of the Debt
Securities at the start of any accrual period will be the issue price of the
Debt Securities increased by the amount of the original issue discount that has
accrued in all previous accrual periods and decreased by the amount of any
payments previously made on the first day of the current accrual period. Because
the U.S. holders of the Debt Securities will include original issue discount in
income as it accrues, actual payments of cash interest (other than qualified
stated interest) on the Debt Securities will not trigger any additional interest
income to the holders.
Information Reporting and Backup Withholding. The Company, on behalf of the
Issuer, will provide annual information statements to U.S. holders of the Debt
Securities and information returns to the United States Internal Revenue Service
(the "IRS") regarding the amount of original issue discount, if any, that
accrued on the Debt Securities during the year.
The Company, on behalf of the Issuer, its paying agent, or other
withholding agent may be required to withhold and remit to the IRS 31 percent of
the interest payments on the Debt Securities if the IRS notifies the Company, on
behalf of the Issuer, its paying agent, or other withholding agent that the U.S.
holder thereof is subject to backup withholding, or if such U.S. holder fails to
provide a taxpayer identification number, provides an incorrect taxpayer
identification number, fails to certify that such holder is not subject to
backup or otherwise fails to comply with applicable requirements of the backup
withholding rules. Certain holders (including, among others, corporations) are
not subject to these backup withholding rules. Any amount paid as backup
withholding would be creditable against the U.S. holder's United States federal
income tax liability.
AUSTRALIAN TAX CONSIDERATIONS
The following is a general summary of the Australian tax position of
holders of Debt Securities, where such Debt Securities are held as investments.
The statements below are based on the provisions of the Income Tax Assessment
Act 1936 (the "Tax Act"), regulations, published rulings and court decisions now
in effect, all of which are subject to change (including changes in
interpretation) possibly with retroactive effect. The comments below do not
constitute tax advice. Prospective investors should consult their professional
tax advisers.
The following summary is based on the assumption that no holder of Debt
Securities will be either a:
(i) resident of Australia for the purposes of the Tax Act; or
(ii) non-resident of Australia with a permanent establishment or fixed
base in Australia.
Special considerations apply to holders in these circumstances which are
not addressed in the following summary.
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DEBT SECURITIES NOT ISSUED AT A DISCOUNT
Payments of Principal, Premium and Interest
Non-resident holders of Debt Securities not issued at a discount will not
be subject to Australian income tax on payments of principal, premium (to the
extent that the premium is not regarded as interest) and interest.
Under section 128F of the Tax Act, interest on debentures (the definition
of which would include the Debt Securities) issued outside Australia by
companies resident in Australia is exempt from Australian interest withholding
tax if:
(i) the interest is paid outside Australia; and
(ii) the Issuer or at least one of the underwriters of the Debt
Securities satisfies one of a number of alternative public offer tests
specified in section 128F of the Tax Act.
The Issuer and the Company have been advised by their Australian tax
counsel, Arthur Robinson & Hedderwicks, that, provided the Debt Securities are
offered and sold in the manner contemplated by this Prospectus and the
underwriting agreement attached as an exhibit to the Registration Statement, the
payment of interest and premium, if any, on the Debt Securities will not be
subject to Australian withholding tax. However, section 128F was recently
amended and no official interpretations thereunder have been rendered.
Consequently, the Australian taxing authorities could take a different view and
determine that the payment of such interest and premium, if any, would be
subject to Australian withholding tax of ten percent. In such event, the Issuer
has agreed to pay Additional Amounts to compensate certain affected holders for
such withholding tax. Such imposition of Australian withholding tax would
entitle the Issuer, at its option, to redeem the Debt Securities in whole, but
not in part, at the outstanding principal balance thereof plus accrued interest.
See "Provisions Applicable to All Debt Securities -- Redemption for Tax
Reasons."
Gains on Sale or Redemption
Gains made on the disposal of any Debt Security held by a non-resident of
Australia as a capital asset will not be subject to Australian income tax
provided:
(i) the Debt Securities have not at any time been used by the holder
in carrying on a trade or business wholly or partly at or through a
permanent establishment in Australia; and
(ii) the gain does not have an Australian source.
The source of any gain derived on the disposal of a Debt Security will be
determined by the factual circumstances of the disposal. The profit on disposal
of a Debt Security should not have an Australian source where the Debt Security
is acquired and disposed of pursuant to contractual arrangements entered into
and concluded outside Australia and the seller and the purchaser of the Debt
Securities are not residents of Australia and do not have permanent
establishments in Australia.
To the extent that any gain is treated as interest, section 128F does not
provide an exemption for gains made on the disposal of Debt Securities.
DEBT SECURITIES ISSUED AT A DISCOUNT
Tax on Discount Component
If the Debt Securities are issued at a discount such that it is reasonably
likely at the time of issue that the sum of all payments (other than interest
which is expressed to be payable at intervals of not more than 1 year) will
exceed the issue price of the Debt Securities by an amount greater than 1.5
percent, they will be treated as a "qualifying security" for Australian tax
purposes. Australian interest withholding tax may be payable on the discount
component when the Debt Securities are redeemed. The current rate of withholding
tax is ten percent. However, as discussed above, an exemption from withholding
tax may
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be available under section 128F of the Tax Act in these circumstances depending
on whether a public offer test specified in section 128F is satisfied.
Gains on Sale
Where a non-resident who does not carry on business at or through a
permanent establishment in Australia disposes of Debt Securities which were
issued at discount to a person other than the Issuer, section 128AA of the Tax
Act may apply to deem any excess between the sale price paid by the purchaser
and the issue price of the Debt Securities to constitute interest for Australian
withholding tax purposes. Where section 128AA of the Tax Act applies, the seller
of the Debt Securities may be subject to Australian interest withholding tax in
respect of the deemed interest received. Section 128F does not provide an
exemption from interest withholding tax in those circumstances.
With the exception of the possible interest withholding tax implications
referred to immediately above, the description of the Australian taxation
consequences applicable on the sale or redemption of Debt Securities not issued
at a discount also applies to Debt Securities issued at a discount.
AUSTRALIAN DEATH DUTIES
Under current Australian law, no Australian State or Federal estate duty or
other inheritance taxes will be payable in respect of the Debt Securities on the
death of a holder, irrespective of the holder's domicile.
PLAN OF DISTRIBUTION
The Issuer may sell the Debt Securities (i) through underwriters or
dealers, (ii) directly to a limited number of institutional purchasers or to a
single purchaser, (iii) through agents, or (iv) through any combination of the
above. An accompanying Prospectus Supplement will set forth the terms of the
offering of the Debt Securities offered thereby, including the name or names of
any underwriter, the purchase price of the Debt Securities and the net proceeds
to the Issuer from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers.
If underwriters are used in the sale of Debt Securities, such Debt
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Unless otherwise set forth in the Prospectus Supplement,
the several obligations of the underwriters to purchase any Debt Securities
offered thereby will be subject to certain conditions precedent and the
underwriters will be obligated to take and pay for all of such Debt Securities,
if any are taken.
The Debt Securities may be sold directly by the Issuer or through
underwriters or agents designated by the Issuer and the Company from time to
time. Any agent involved in the offer or sale of the Debt Securities will be
named, and any commissions payable by the Issuer to such agents will be set
forth, in an accompanying Prospectus Supplement. Unless otherwise indicated in
such Prospectus Supplement, any such agent will be acting on a reasonable
efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Issuer will authorize
underwriters or other persons acting as the Issuer's agents to solicit offers by
certain institutions to purchase Debt Securities from the Issuer pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Issuer and the Company. The obligations of any purchaser under such contract
will be subject to the condition that the purchase of the offered Debt
Securities shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect to the validity of
performance of such contracts.
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Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for the Company or the
Issuer in the ordinary course of business.
Agents and underwriters may be entitled under agreements entered into with
the Company and the Issuer to indemnification by the Company and the Issuer
against certain civil liabilities, including liabilities under the Securities
Act.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered will be set forth in an accompanying Prospectus
Supplement.
LEGAL MATTERS
Certain U.S. legal matters regarding the Debt Securities offered hereby
under laws other than United States federal or state securities laws have been
passed upon for the Company by its Vice President and General Counsel, Z. S.
Kobiashvili. As of the date of this Prospectus, Mr. Kobiashvili owns 1,291
shares of Apache Common Stock through the Company's retirement/401(k) savings
plan; holds employee stock options to purchase 31,900 shares of Apache Common
Stock, of which options to purchase 13,225 shares are currently exercisable; and
holds a conditional grant under the Company's 1996 Share Price Appreciation Plan
relating to 18,900 shares of Apache Common Stock, none of which is vested.
Certain U.S. legal matters will also be passed upon for the Company and the
Issuer by Woodard, Hall & Primm, P.C., Houston, Texas; certain Australian legal
matters will be passed upon for the Company and the Issuer by Arthur Robinson &
Hedderwicks, Melbourne, Victoria, Australia; and certain U.S. legal matters will
be passed upon for the underwriters or agents by Brown & Wood LLP, New York, New
York.
EXPERTS
The audited consolidated financial statements of the Company, incorporated
by reference into this Prospectus, have been audited by Arthur Andersen LLP,
independent public accountants ("Arthur Andersen"), as indicated in their
reports with respect thereto. In Arthur Andersen's report on the consolidated
financial statements of the Company, that firm states that with respect to
DEKALB, for the year ended December 31, 1994, its opinion is based on the report
of other independent public accountants, namely Coopers & Lybrand, Chartered
Accountants ("Coopers & Lybrand"). The financial statements referred to above
have been incorporated by reference herein in reliance upon the authority of
those firms as experts in accounting and auditing in giving said reports.
The audited consolidated financial statements of DEKALB incorporated by
reference into this Prospectus have been audited by Coopers & Lybrand, as
indicated in their report with respect thereto, and have been incorporated by
reference herein in reliance upon the authority of that firm as experts in
accounting and auditing in giving said report.
The information incorporated by reference herein regarding the proved
reserves of the Company's U.S., Canadian and certain international properties
was prepared by the Company and reviewed by Ryder Scott Company Petroleum
Engineers ("Ryder Scott"), as stated in their letter reports with respect
thereto, and is so incorporated by reference in reliance upon the authority of
said firm as experts in such matters. The information incorporated by reference
herein regarding the total estimated proved reserves acquired in March, 1995
from Texaco Exploration and Production Inc. was prepared by the Company and
reviewed by Ryder Scott, as stated in their letter reports with respect thereto,
and is so incorporated by reference in reliance upon the authority of said firm
as experts in such matters. The information incorporated by reference herein
regarding the total proved reserves of DEKALB was prepared by DEKALB and for the
four years ended December 31, 1994 was reviewed by Ryder Scott, as stated in
their letter reports with respect thereto, and is so incorporated by reference
in reliance upon the authority of said firm as experts in such matters.
The information incorporated by reference herein regarding the proved
reserves of the Company's Egyptian properties was prepared by the Company and
reviewed by Netherland, Sewell & Associates,
31
<PAGE> 33
Inc. ("Netherland, Sewell"), as stated in their letter reports with respect
thereto, and is so incorporated by reference in reliance upon the authority of
said firm as experts in such matters. A portion of the information incorporated
by reference herein regarding the total proved reserves of Aquila Energy
Resources Corporation ("Aquila") acquired in September 1995 by the Company was
prepared by Netherland, Sewell as of December 31, 1994, as stated in their
letter report with respect thereto, and is so incorporated by reference in
reliance upon the authority of said firm as experts in such matters. Netherland,
Sewell did not review any of the reserves of Aquila acquired during 1995.
32
<PAGE> 34
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION, OR TO MAKE ANY REPRESENTATION, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS, AND, IF
GIVEN OR MADE, SUCH OTHER INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY THE ISSUER, APACHE OR ANY UNDERWRITER. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF ISSUER OR APACHE SINCE THE DATE HEREOF. THIS PROSPECTUS IS NOT AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITY IN ANY JURISDICTION IN
WHICH IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................... 3
Information Incorporated by Reference... 3
The Company............................. 5
The Issuer.............................. 5
Use of Proceeds......................... 5
Ratio of Earnings to Fixed Charges...... 5
Description of Debt Securities and
Guarantees............................ 6
DTC Book-Entry-Only System.............. 24
Certain Tax Considerations.............. 26
Plan of Distribution.................... 30
Legal Matters........................... 31
Experts................................. 31
</TABLE>
$300,000,000
APACHE FINANCE
PTY LTD
DEBT SECURITIES
IRREVOCABLY AND UNCONDITIONALLY
GUARANTEED BY
APACHE CORPORATION
[APACHE CORPORATION LOGO]
PROSPECTUS
DATED NOVEMBER , 1997
<PAGE> 35
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Estimated expenses, other than underwriting discounts and commissions, in
connection with the issuance and distribution of the Debt Securities are as
follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee............... $ 90,909
Blue Sky fees and expenses.................................. 15,000
Rating agency fees.......................................... 50,000
Legal fees and expenses..................................... 300,000
Accounting fees and expenses................................ 75,000
Trustee's fees and expenses................................. 12,000
Printing and engraving...................................... 100,000
Miscellaneous............................................... 7,091
--------
Total............................................. $650,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
THE COMPANY
Section 145 of the Delaware General Corporation Law, inter alia, authorizes
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 (other than an action by or in the right of the corporation) because
such person is or was a director, officer, employee or agent of the corporation
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such suit or
proceeding if the 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
reason to believe his conduct was unlawful. Similar indemnity is authorized for
such persons against expenses (including attorneys' fees) actually and
reasonably incurred in defense or settlement of any such pending, completed or
threatened action or suit by or in the right of the corporation if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and provided further that
(unless a court of competent jurisdiction otherwise provides) such person shall
not have been adjudged liable to the corporation. Any such indemnification may
be made only as authorized in each specific case upon a determination by the
stockholders or disinterested directors that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of the person's status as such, whether or
not the corporation would otherwise have the power to indemnify such person. The
Company maintains policies insuring its and its subsidiaries' officers and
directors against certain liabilities for actions taken in such capacities,
including liabilities under the Securities Act of 1933, as amended.
Article VII of the Company's bylaws provides, in substance, that directors,
officers, employees and agents of the Company shall be indemnified to the extent
permitted by Section 145 of the Delaware General Corporation Law. Additionally,
Article Seventeen of the Company's Restated Certificate of Incorporation
eliminates in certain circumstances the monetary liability of directors of the
Company for a
II-1
<PAGE> 36
breach of their fiduciary duty as directors. These provisions do not eliminate
the liability of a director (i) for a breach of the director's duty of loyalty
to the Company or its stockholders; (ii) for acts or omissions by the director
not in good faith; (iii) for acts or omissions by a director involving
intentional misconduct or a knowing violation of the law; (iv) under Section 174
of the Delaware General Corporation Law (relating to the declaration of
dividends and purchase or redemption of shares in violation of the Delaware
General Corporation Law); and (v) for transactions from which the director
derived an improper personal benefit.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended, may be permitted to directors, officers and controlling
persons of the Company pursuant to the above provisions or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit or
proceeding) is asserted against the Company by such director, officer or
controlling person in connection with the securities being registered, the
Company 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.
THE ISSUER
Section 241 of the Corporations Law of Australia (the "Corporations Law")
applies to corporations established thereunder, including the Issuer, and
prohibits a corporation (or any of its affiliates) from giving an indemnity to
any person who is or has been an officer of the corporation against a liability
incurred in such capacity, except to the extent expressly permitted by that
section. For the purposes of this section, an "officer" of a corporation
includes a director, secretary, executive officer or trustee of that
corporation.
Pursuant to Section 241(2) of the Corporations Law, a corporation may
indemnify any person against a liability to another person (that is, excluding a
liability to the corporation itself or an affiliate), unless the liability
arises out of conduct involving a lack of good faith. Section 241(3) of the
Corporations Law also specifically permits a person to be indemnified against a
liability for legal costs and expenses incurred (i) in defending civil or
criminal proceedings in which judgment is given in favour of the person or in
which the person is acquitted, or (ii) in connection with an application in
relation to such proceedings in which the court grants relief to the person
under the Corporation Law.
A corporation may purchase and maintain insurance on behalf of a person who
is or has been an officer of the corporation against liabilities incurred in
such capacity, but Section 241A(1) of the Corporations Law prohibits the
purchase of such insurance in respect of any liability arising from (i) improper
use by that person of inside information to gain an advantage for any person or
cause detriment to the corporation or (ii) any improper use of that person's
position to gain such advantage or cause such detriment. A corporation may,
however, insure such a person against a liability for legal costs and expenses
incurred in defending any civil or criminal proceedings.
Article 111 of the Articles of Association of the Issuer provides that its
directors, secretaries, officers, employees and trustees shall be indemnified to
the extent permitted by the Corporations Law. Article 111 also provides that on
the authority of the directors, the Issuer may execute a documentary indemnity
in favor of any officer of the Issuer and purchase insurance on behalf of or in
respect of officers of the Issuer against liability incurred in such capacity.
Reference is made to Section 6 of the form of Underwriting Agreement filed
as Exhibit 1.1 hereto for a description of the indemnification arrangements the
Issuer and the Company are prepared to make in connection with the proposed
offering of the Debt Securities registered hereby.
II-2
<PAGE> 37
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibits
<TABLE>
<S> <S>
*1.1 -- Form of Underwriting Agreement
*4.1 -- Form of Indenture among the Issuer, the Company and The
Chase Manhattan Bank, Trustee, governing the Debt
Securities and the Guarantees.
*4.2 -- Form of Debt Security.
*5.1 -- Opinion of Z.S. Kobiashvili, General Counsel of the
Company, regarding legality under U.S. law of securities
being registered.
*5.2 -- Opinion of Arthur Robinson & Hedderwicks regarding
legality under Australian law of securities being
registered.
*8.1 -- Opinion of Woodard, Hall & Primm, P.C. as to certain
United States federal income tax matters.
*8.2 -- Opinion of Arthur Robinson & Hedderwicks as to certain
Australian tax matters.
**12.1 -- Statement of computation of ratio of earnings to fixed
charges.
*23.1 -- Consent of Arthur Andersen LLP.
**23.2 -- Consent of Coopers & Lybrand, Chartered Accountants.
**23.3 -- Consent of Ryder Scott Company Petroleum Engineers.
**23.4 -- Consent of Netherland, Sewell & Associates, Inc.
23.5 -- Consent of Z.S. Kobiashvili, General Counsel of the
Company (included in Exhibit 5.1).
23.6 -- Consent of Arthur Robinson & Hedderwicks (included in
Exhibit 5.2).
23.7 -- Consent of Woodard, Hall & Primm, P.C. (included in
Exhibit 8.1).
23.8 -- Consent of Arthur Robinson & Hedderwicks as to certain
Australian tax matters (included in Exhibit 8.2).
**24.1 -- Powers of Attorney (included in Part II as a part of the
signature pages of the Registration Statement).
**25.1 -- Statement of Eligibility and Qualification under Trust
Indenture Act of 1939 of The Chase Manhattan Bank,
Trustee, is filed separately on Form T-1.
</TABLE>
- ---------------
* filed herewith
** previously filed
II-3
<PAGE> 38
UNDERTAKINGS
(a) Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference
in this registration statement.
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Company's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this registration statement relating
to the securities offered herein, shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
either of the registrants pursuant to the foregoing provisions of Article 15, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by a registrant of expenses incurred or paid by a director, officer
or controlling person of such registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrants 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 them is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-4
<PAGE> 39
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 Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Houston, State of Texas.
APACHE CORPORATION
Date: November 21, 1997 By: /s/ Z. S. KOBIASHVILI
------------------------------------
Z. S. Kobiashvili
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by an attorney-in-fact on
behalf of the following persons, in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ RAYMOND PLANK* Chairman and Chief Executive Officer
- ----------------------------------------------------- (Principal Executive Officer)
Raymond Plank
/s/ ROGER B. PLANK* Vice President and Chief Financial Officer
- ----------------------------------------------------- (Principal Financial Officer)
Roger B. Plank
/s/ THOMAS L. MITCHELL* Vice President and Controller (Principal
- ----------------------------------------------------- Accounting Officer)
Thomas L. Mitchell
/s/ FREDERICK M. BOHEN* Director
- -----------------------------------------------------
Frederick M. Bohen
/s/ RANDOLPH M. FERLIC* Director
- -----------------------------------------------------
Randolph M. Ferlic
/s/ W. BROOKS FIELDS* Director
- -----------------------------------------------------
W. Brooks Fields
/s/ STANLEY K. HATHAWAY* Director
- -----------------------------------------------------
Stanley K. Hathaway
/s/ GEORGE D. LAWRENCE JR.* Director
- -----------------------------------------------------
George D. Lawrence Jr.
/s/ F.H. MERELLI* Director
- -----------------------------------------------------
F.H. Merelli
/s/ G. STEVEN FARRIS* Director
- -----------------------------------------------------
G. Steven Farris
</TABLE>
<PAGE> 40
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ EUGENE C. FIEDOREK Director
- -----------------------------------------------------
Eugene C. Fiedorek
/s/ A.D. FRAZIER, JR.* Director
- -----------------------------------------------------
A.D. Frazier, Jr.
/s/ JOHN A. KOCUR* Director
- -----------------------------------------------------
John A. Kocur
/s/ MARY RALPH LOWE* Director
- -----------------------------------------------------
Mary Ralph Lowe
/s/ JOSEPH A. RICE* Director
- -----------------------------------------------------
Joseph A. Rice
*By Z. S. KOBIASHVILI
-------------------------------------------------
Z. S. Kobiashvili
Attorney-in-Fact
</TABLE>
Date: November 21, 1997
<PAGE> 41
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 Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Houston, State of Texas.
APACHE FINANCE PTY LTD
Date: November 21, 1997 By: /s/ Z. S. KOBIASHVILI
-----------------------------------
Z. S. Kobiashvili,
Vice President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by an attorney-in-fact on
behalf of the following persons, in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ RAYMOND PLANK* Director and Chairman (Principal Executive
- ----------------------------------------------------- Officer)
Raymond Plank
/s/ ROGER B. PLANK* Director, Vice President and
- ----------------------------------------------------- Chief Financial Officer (Principal Financial
Roger B. Plank Officer)
/s/ THOMAS L. MITCHELL* Vice President (Principal Accounting Officer)
- -----------------------------------------------------
Thomas L. Mitchell
/s/ G. STEVEN FARRIS* Director
- -----------------------------------------------------
G. Steven Farris
/s/ FLOYD R. PRICE* Director
- -----------------------------------------------------
Floyd R. Price
/s/ Z. S. KOBIASHVILI Director
- -----------------------------------------------------
Z.S. Kobiashvili
/s/ JOHN A. CRUM* Director
- -----------------------------------------------------
John A. Crum
/s/ NEIL J. MCHARRIE* Director
- -----------------------------------------------------
Neil J. McHarrie
*By: /s/ Z. S. KOBIASHVILI
------------------------------------------------
Z. S. Kobiashvili
Attorney-in-Fact
</TABLE>
Date: November 21, 1997
<PAGE> 42
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<C> <S> <C>
*1.1 -- Form of Underwriting Agreement (Debt Securities).
*4.1 -- Form of Indenture among the Issuer, the Company and The
Chase Manhattan Bank, Trustee, governing the Debt
Securities (and the Guarantees).
*4.2 -- Form of Debt Security.
*5.1 -- Opinion of Z.S. Kobiashvili, General Counsel of the
Company, regarding legality under U.S. law of Debt
Securities and Guarantees being registered.
*5.2 -- Opinion of Arthur Robinson & Hedderwicks regarding
legality under Australian law of securities being
registered.
*8.1 -- Opinion of Woodard, Hall & Primm, P.C. as to certain
United States federal income tax matters.
*8.2 -- Opinion of Arthur Robinson & Hedderwicks as to certain
Australian tax matters.
**12.1 -- Statement of computation of ratio of earnings to fixed
charges.
*23.1 -- Consent of Arthur Andersen LLP.
**23.2 -- Consent of Coopers & Lybrand, Chartered Accountants.
**23.3 -- Consent of Ryder Scott Company Petroleum Engineers.
**23.4 -- Consent of Netherland, Sewell & Associates, Inc.
23.5 -- Consent of Z.S. Kobiashvili, General Counsel of the
Company (included in Exhibit 5.1).
23.6 -- Consent of Arthur Robinson & Hedderwicks (included in
Exhibit 5.2).
23.7 -- Consent of Woodard, Hall & Primm, P.C. (included in
Exhibit 8.1).
23.8 -- Consent of Arthur Robinson & Hedderwicks (included in
Exhibit 8.2).
**24.1 -- Powers of Attorney (included in Part II as a part of the
signature pages of the Registration Statement).
**25.1 -- Statement of Eligibility and Qualification under Trust
Indenture Act of 1939 of The Chase Manhattan Bank,
Trustee, is filed separately on Form T-1.
</TABLE>
- ---------------
* filed herewith
** previously filed
<PAGE> 1
EXHIBIT 1.1
================================================================================
APACHE FINANCE PTY LTD
DEBT SECURITIES
GUARANTEED BY APACHE CORPORATION
[FORM OF]
UNDERWRITING AGREEMENT BASIC TERMS
<PAGE> 2
APACHE FINANCE PTY LTD
Debt Securities
Guaranteed by Apache Corporation
UNDERWRITING AGREEMENT BASIC TERMS
Apache Finance Pty Ltd (A.C.N. 080 571 900), a proprietary company with
limited liability duly organized under the laws of the Australian Capital
Territory (the "Company"), may issue and sell from time to time its debt
securities (the "Debt Securities"). The Debt Securities are unconditionally
guaranteed as to payment of principal, premium, if any, Additional Amounts (as
defined in the Indenture), if any, and interest by Apache Corporation (the
"Guarantor"). The Debt Securities are issuable under, and the guarantee thereof
by the Guarantor (the "Guarantee") is contained in, an indenture, dated as of
__________ __, 1997 (the "Indenture"), between the Company, the Guarantor and
The Chase Manhattan Bank, as trustee (the "Trustee"). Each issue of Debt
Securities may vary as to series, aggregate principal amount, maturity, interest
rate or rates and timing of payments thereof, redemption provisions, if any, and
any other variable terms as set forth in the Terms Agreement (as defined below)
relating thereto which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time.
Whenever the Company determines to make an offering of Debt
Securities, the Company and the Guarantor will enter into an agreement (the
"Terms Agreement") providing for the sale of such securities (the "Offered
Securities") to, and the purchase and offering thereof by, one or more
underwriters specified in the Terms Agreement (the "Underwriters", which term
shall include any Underwriters substituted pursuant to Section 10 hereof). The
Terms Agreement relating to the Offered Securities shall specify the names of
the Underwriters participating in such offering, the amount of Offered
Securities which each such Underwriter severally agrees to purchase, the price
at which the Offered Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the time and place of delivery
and payment, such other information as is indicated in
<PAGE> 3
Exhibit A hereto and such other terms as are agreed by the Company and the
Underwriters. In addition, each Terms Agreement shall specify whether the
Company has agreed to grant to the Underwriters an option to purchase
additional Offered Securities to cover over-allotments, if any, and the amount
of Offered Securities subject to such option (the "Option Securities"). As
used herein, the term "Offered Securities" shall include the Option Securities,
if any, and "Representatives" shall mean the Underwriter or Underwriters so
specified in the Terms Agreement or, if no Underwriter is so specified, shall
mean each Underwriter. The Terms Agreement may be in the form of an exchange
of any standard form of written telecommunication between the Underwriters and
the Company. The offering of the Offered Securities will be governed by the
Terms Agreement, as supplemented hereby (collectively, this "Agreement"), and
this Agreement shall inure to the benefit of and be binding upon each
Underwriter participating in the offering of the Offered Securities.
The Company and the Guarantor have prepared and filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on Form S-3 (Nos. 333-39973 and 333-39973-01) for the registration of Debt
Securities, including the Offered Securities and the Guarantee, under the
Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof
from time to time in accordance with Rule 415 of the rules and regulations of
the Commission under the 1933 Act (the "1933 Act Regulations"), and have
prepared and filed such amendments thereto as may have been required to the
date hereof. Such registration statement, as amended, has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). As provided in Section 3(a), a
prospectus supplement reflecting the terms of the Offered Securities, the terms
of the offering thereof and the other matters set forth therein has been
prepared and will be filed pursuant to Rule 424 under the 1933 Act. Such
prospectus supplement, in the form first filed after the date of the Terms
Agreement pursuant to Rule 424, is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date of the Terms
Agreement, including the exhibits thereto and the documents incorporated by
reference therein, is herein called the "Registration Statement". Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement,"
and after such filing the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The basic prospectus included in the
Registration Statement relating to all offerings of Debt Securities and the
Guarantee under the Registration Statement, as supplemented by the Prospectus
Supplement, is herein called the "Prospectus", except that, if such basic
2
<PAGE> 4
prospectus is amended or supplemented on or prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the basic prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement or, if any revised prospectus
shall be provided to the Underwriters by the Company and the Guarantor for
their use in connection with the offering of the Offered Securities which
differs from such basic prospectus and Prospectus Supplement (whether or not
required to be filed by the Company pursuant to Rule 424), the term
"Prospectus" shall refer to such revised prospectus (including any prospectus
supplement) from and after the time it is first provided to the Underwriters
for such use, in either case including the documents filed by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein.
SECTION 1. Representations and Warranties. The Company represents
and warrants as to matters relating to the Company and the Guarantor represents
and warrants as to matters relating to the Guarantor and its consolidated
subsidiaries, to each Underwriter named in the Terms Agreement as of the date
thereof and as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b) hereof (in each
case, a "Representation Date"), as follows:
(a) The Company has been duly organized and is validly
existing as a proprietary Company with limited liability under the laws
of the Australian Capital Territory, Australia, with corporate power
and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus, and to enter into and perform
its obligations under this Agreement, the Offered Securities and the
Indenture; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which the character or location of its properties or the nature or the
conduct of its business requires such qualification, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or to be in good standing would
not have a material adverse effect on the condition, financial or
otherwise, on the results of operations, business affairs or business
prospects of the Company or on its ability to perform its obligations
hereunder or under the Offered Securities or the Indenture. The
Company is an indirect wholly-owned consolidated subsidiary of the
Guarantor and has no subsidiaries.
(b) The Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the
3
<PAGE> 5
laws of the State of Delaware, with corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement; and the Guarantor is duly qualified
as a foreign corporation to transact business and is in good standing
in the State of Texas and in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Guarantor and its subsidiaries considered as one enterprise.
(c) Each "significant subsidiary" of the Guarantor as defined
in Rule 405 of Regulation C of the 1933 Act Regulations (collectively,
the "Significant Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct its
business as described in the Prospectus and is duly qualified as a
foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the condition,
financial or otherwise, or the results of operations, business affairs
or business prospects of the Guarantor and its subsidiaries considered
as one enterprise; and, except as described in the Prospectus, all of
the issued and outstanding capital stock of each Significant
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and, except for directors' qualifying shares (if
applicable), is owned by the Guarantor, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(d) At the time the Registration Statement and the Rule
462(b) Registration Statement, if any, became effective and as of each
Representation Date, the Registration Statement and the Rule 462(b)
Registration Statement, if any, complied and will comply in all
material respects with the requirements of the 1933 Act and the 1933
Act Regulations and the 1939 Act and the rules and regulations of the
Commission promulgated thereunder; the Registration Statement and the
Rule 462(b) Registration Statement, if any, each at the time it became
effective, did not, and at each
4
<PAGE> 6
time thereafter at which any amendment to the Registration Statement
becomes effective or any Annual Report on Form 10-K is filed by the
Guarantor with the Commission and as of each Representation Date, will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus, as of each
Representation Date, does not and will not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement and the
Rule 462(b) Registration Statement, if any, or the Prospectus made in
reliance upon and in conformity with information furnished to the
Company or the Guarantor in writing by the Underwriters expressly for
use in the Registration Statement and the Rule 462(b) Registration
Statement, if any, or the Prospectus.
(e) The documents incorporated by reference in the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case may be,
in all material respects with the requirements of the 1934 Act and the
rules and regulations of the Commission promulgated thereunder (the
"1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were or
are made, not misleading.
(f) The accountants who certified the financial statements
included or incorporated by reference in the Registration Statement
and the Prospectus are independent public accountants with respect to
the Company and the Guarantor as required by the 1933 Act and the 1933
Act Regulations.
(g) The financial statements and any supporting schedules of
the Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Guarantor and its
subsidiaries as of the dates indicated and the consolidated results of
their operations for the periods specified; except as stated therein,
said financial statements have been prepared in
5
<PAGE> 7
conformity with U.S. generally accepted accounting principles applied
on a consistent basis; the supporting schedules included or
incorporated by reference in the Registration Statement and the
Prospectus present fairly the information required to be stated
therein; and the pro forma financial statements and the related notes
thereto, if any, included or incorporated by reference in the
Registration Statement and the Prospectuses present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(h) The petroleum engineers who have consented to being named
as having reviewed certain reserve data included or incorporated by
reference in the Prospectus are independent engineers with respect to
the Guarantor and its subsidiaries.
(i) This Agreement and the applicable Delayed Delivery
Contracts (as defined below), if any, have been duly authorized,
executed and delivered by the Company and the Guarantor and, upon
execution and delivery by the Underwriters, will be valid and legally
binding agreements of the Company and the Guarantor; on and after the
Closing Time, the Indenture will have been duly authorized, executed
and delivered by the Company and the Guarantor and, assuming due
execution and delivery by the Trustee, will be a valid and legally
binding agreement of the Company and the Guarantor enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further as
enforcement thereof may be limited by (1) requirements that a claim
with respect to any Debt Securities denominated other than in U.S.
dollars (or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the making of
payments outside the United States. The Offered Securities have been
duly and validly authorized for issuance, offer and sale pursuant to
this Agreement and each Delayed Delivery Contract, if any, and when
issued, authenticated and delivered pursuant to the provisions of this
Agreement and the Indenture against
6
<PAGE> 8
payment of the consideration therefor, the Offered Securities will
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles, and
except further as enforcement thereof may be limited by (1)
requirements that a claim with respect to any Offered Securities
denominated other than in U.S. dollars (or a foreign currency or
composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority to
limit, delay or prohibit the making of payments outside the United
States. The Offered Securities and the Indenture, including the
Guarantee, will be substantially in the form heretofore delivered to
the Underwriters and conform in all material respects to all
statements relating thereto contained in the Prospectus; and each
Holder (as defined in the Indenture) of Offered Securities will be
entitled to the benefits of the Indenture.
(j) The Guarantee has been duly and validly authorized by the
Guarantor, and, when the Offered Securities are issued, authenticated
and delivered pursuant to the provisions of this Agreement and the
Indenture against payment of the consideration therefor, the Guarantee
will be a valid and legally binding obligation of the Guarantor with
respect to the Offered Securities enforceable in accordance with its
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally against the Guarantor or by
general equity principles and except further as enforcement thereof
may be limited by (1) requirements that a claim with respect to any
Offered Securities denominated other than in U.S. dollars (or a
foreign currency or composite currency judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments outside
the United States, and the Holder of the Offered Securities will be
entitled to the benefits of the Guarantee.
(k) Since the respective dates as of which information is
given in the Registration Statement, any Rule 462(b) Registration
Statement and the Prospectus, except as may otherwise be stated
therein or contemplated thereby, (1) there has been no material
adverse change in the
7
<PAGE> 9
condition, financial or otherwise, or in the results of operations,
business affairs or business prospects of the Company or the Guarantor
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business and (2) there have been no
material transactions entered into by the Guarantor or any of its
subsidiaries other than those in the ordinary course of business.
(l) Neither the Guarantor nor any of its subsidiaries is in
violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or
by which it or any of them or their properties may be bound, where the
consequences of such violation or default would have a material
adverse effect on the condition, financial or otherwise, or the
results of operations, business affairs or business prospects of the
Company or the Guarantor and its subsidiaries considered as one
enterprise; and the execution and delivery of this Agreement, each
Delayed Delivery Contract, if any, and the Indenture and the
consummation of the transactions contemplated herein and therein have
been duly authorized by all necessary corporate action of the Company
and the Guarantor and will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Guarantor or any of its subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Guarantor or any of its subsidiaries is a party or by
which it or any of them may be bound or to which any of the property
or assets of the Guarantor or any subsidiary thereof is subject, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company or the Guarantor or any law,
administrative regulation or administrative or court order or decree,
where the consequences of such conflict, breach, creation, imposition,
violation or default would have a material adverse effect on the
condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company or the Guarantor
and its subsidiaries considered as one enterprise.
(m) No consent, approval, authorization, order or decree of
any court or governmental agency or body is required for the
consummation by the Company and the Guarantor of the transactions
contemplated by this Agreement or in connection with the sale of
Offered Securities hereunder, except such as have been obtained or
rendered, as the case
8
<PAGE> 10
may be, or as may be required under state securities laws ("Blue
Sky").
(n) Except as may be included or incorporated by reference in
the Registration Statement and the Prospectus, there is no action,
suit or proceeding before or by any court or governmental agency or
body, domestic or foreign, now pending or, to the knowledge of the
Company or the Guarantor, threatened against or affecting the
Guarantor or any of its subsidiaries which might, in the opinion of
the Company or the Guarantor, result in any material adverse change in
the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company or
the Guarantor and its subsidiaries considered as one enterprise, or
could reasonably be expected to materially and adversely affect the
properties or assets thereof or could reasonably be expected to
materially and adversely affect the consummation of this Agreement or
the Indenture or any transaction contemplated hereby or thereby.
(o) There are no contracts or documents of the Guarantor or
any of its subsidiaries which are required to be filed as exhibits to
the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(p) Neither the Guarantor nor any of its subsidiaries is in
violation of any law, ordinance, governmental rule or regulation or
court decree to which it may be subject or has failed to obtain any
license, permit, franchise or other governmental authorization
necessary to the ownership of its property or to the conduct of its
business, which violation or failure would materially adversely affect
the condition, financial or otherwise, or the results of operations,
business affairs or business prospects of the Company or the Guarantor
and its subsidiaries considered as one enterprise; and the Guarantor
and its subsidiaries own or possess or have obtained all governmental
licenses, permits, consents, orders, approvals and other
authorizations and have properly filed with the appropriate
authorities all notices, applications and other documents necessary to
lease or own their respective properties and to carry on their
respective businesses as presently conducted, except where the failure
to possess such licenses or authorizations or make such filings would
not materially adversely affect the condition, financial or otherwise,
or the results of operations, business affairs or business prospects
of the Company or the Guarantor and its subsidiaries considered as one
enterprise.
9
<PAGE> 11
(q) The Guarantor and its subsidiaries own or possess, or can
acquire on reasonable terms, adequate trademarks, service marks and
trade names necessary to conduct the business now operated by them,
except as set forth or incorporated by reference in the Registration
Statement or except where the failure to own or possess the same would
not materially adversely affect the condition, financial or otherwise,
or the results of operations, business affairs or business prospects
of the Company or the Guarantor and its subsidiaries considered as one
enterprise, and neither the Guarantor nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted
rights of others with respect to any trademarks, service marks or
trade names which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely
affect the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company or
the Guarantor and its subsidiaries considered as one enterprise.
(r) The Guarantor and its subsidiaries have legal, valid and
defensible title to all of their interests in oil and gas properties
and to all other real and personal property owned by them and any
other real property and buildings held under lease by the Guarantor
and its subsidiaries are held by them under valid, subsisting and
enforceable leases, in each case free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or
encumbrances and defects of any kind, except such as (1) are described
in the Prospectus, (2) liens and encumbrances under operating
agreements, unitization and pooling agreements, production sales
contracts, farm-out agreements and other oil and gas exploration and
production agreements, in each case that secure payment of amounts not
yet due and payable for the performance of other inchoate obligations
and are of a scope and nature customary in connection with similar
drilling and producing operations or (3) those that do not have a
material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company or the Guarantor.
(s) The information underlying the estimates of oil and gas
reserves as described in the Prospectus is complete and accurate in
all material respects (or, with regard to any information underlying
the estimates prepared by any petroleum engineers retained by the
seller of such oil and gas reserves, is, to the best knowledge of the
Company and the Guarantor after reasonable investigation, complete and
accurate in all material respects); other than production of
10
<PAGE> 12
the reserves in the ordinary course of business and intervening
product price fluctuations described in the Prospectus, the Company
and the Guarantor are not aware of any facts or circumstances that
would result in a material adverse change in the reserves or the
present value of future net cash flows therefrom as described in the
Prospectus. Estimates of such reserves and present values comply in
all material respects with the applicable requirements of Regulation
S-X and Industry Guide 2 under the 1933 Act.
(t) Neither the Company, nor the Guarantor or any of its
other subsidiaries, is required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
(u) The Guarantor has complied and will comply with the
provisions of Florida H.B. 1771, codified as Section 517.075 of the
Florida Statutes, 1987, as amended, and all regulations promulgated
thereunder relating to issuers doing business in Cuba.
(v) Except as described in the Registration Statement, (1)
neither the Guarantor nor any of its subsidiaries is in violation of
any local or foreign laws or regulations relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), except
such violations as would not, singly or in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of
the Company or the Guarantor and its subsidiaries considered as one
enterprise, and (2) to the best of the Company's and the Guarantor's
knowledge, there are no events or circumstances that could reasonably
be expected to be the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Guarantor or any of its
subsidiaries relating to any Hazardous Materials or the violation of
any Environmental Laws, which, singly or in the aggregate, could
reasonably be expected to have a material adverse effect on the
condition,
11
<PAGE> 13
financial or otherwise, or the results of operations, business affairs
or business prospects of the Company or the Guarantor and its
subsidiaries considered as one enterprise.
(w) Except as described in the Prospectus, or as has already
been paid or authorized for payment, no stamp duty or similar tax or
duty is payable under applicable laws or regulations of the
Commonwealth of Australia, any of its States, territories or
possessions, or any political subdivision thereof (collectively,
"Australia") in connection with the creation, issuance or delivery of
the Offered Securities, the transfer of any of the Offered Securities
or with respect to the execution and delivery of this Agreement, the
Offered Securities or the Indenture or any document contemplated
hereby or thereby.
(x) Except as described in the Prospectus, payments made by
the Company under the Offered Securities or the Guarantor under the
Guarantee or either of them hereunder or under the Indenture will not
be subject under the current laws or regulations of Australia to any
withholdings or similar charges for or on account of taxation.
(y) The choice of the laws of the State of New York as the
governing law of the Offered Securities, the Indenture and this
Agreement is a valid choice of law under the laws of Australia and
courts of Australia will honor this choice of law. The Company has
the power to submit and pursuant to this Agreement and the Indenture
has legally, validly, effectively and irrevocably submitted to the
personal jurisdiction of the United States District Court for the
Southern District of New York and the Supreme Court of New York, New
York County (including, in each case, any appellate courts therefrom)
in any suit, action or proceeding against it arising out of or related
to any of the Offered Securities, the Indenture and the Guarantee or
with respect to its obligations, liabilities or any other matter
arising out of or in connection with the sale of the Offered
Securities by the Company to the Underwriters under this Agreement and
has validly and irrevocably waived any objection to the venue of a
proceeding in any such court; and has the power to designate, appoint
and empower and pursuant to this Agreement and the Indenture has
legally, validly, effectively and irrevocably designated, appointed
and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement, the Offered
Securities or the Indenture, as the case may be, in any federal or
state court in the State of New York.
(z) Except as described in the Prospectus, any final judgment
for a definite sum of money rendered by any court
12
<PAGE> 14
of the State of New York or of the United States located in the State
of New York having jurisdiction under its own domestic laws in respect
of any suit, action or proceeding against the Company based upon any
instruments or agreements entered into for the consummation of the
transactions contemplated herein would be declared enforceable against
the Company by the courts of Australia without reexamination, review
of the merits of the cause of action in respect of which the original
judgment was given or relitigation of the matters adjudicated upon or
payment of any stamp, registration or similar tax or duty, provided
that (A) the judgment is consistent with public policy in Australia
and any relevant political subdivision, (B) the judgment was not given
or obtained by fraud or in a manner contrary to natural justice, (C)
the judgment was not based on a clear mistake of law or fact, (D) the
judgment was not directly or indirectly for the payment of taxes or
other charges of a like nature or of a fine or other penalty, (E) the
judgment is for a definite sum, and (F) there has been no prior
judgment in another court between the same parties concerning the same
issues as are dealt with in the judgment to be enforced in Australia.
The Company is not aware of any reason why the enforcement in
Australia of such a judgment in respect of any of the instruments or
agreements executed for consummation of the transactions contemplated
herein or in the Prospectus would be contrary to public policy in
Australia or any political subdivision of either of them.
(aa) The Company, and its obligations under this Agreement,
the Offered Securities and the Indenture, are subject to civil and
commercial law and to suit and neither it nor any of its properties,
assets or revenues have any right of immunity, on the grounds of
sovereignty, from any legal action, suit or proceeding, from the
giving of any relief in any such legal action, suit or proceeding,
from setoff or counterclaim, from the jurisdiction of any Australian,
New York State or U.S. federal court, as the case may be, from service
of process, attachment upon or prior to judgment, or attachment in aid
of execution of judgment, or from execution or enforcement of a
judgment, or other legal process or proceeding for the giving of any
relief or for the enforcement of a judgment, in any such court, with
respect to its obligations or liabilities or any other matter under or
arising out of or in connection with the Offered Securities, this
Agreement or the Indenture; and, to the extent that the Company or any
of its properties, assets or revenues may have or may hereafter become
entitled to any such right of immunity in any such court in which
proceedings may at any time be commenced, the
13
<PAGE> 15
Company has waived or will waive such right to the extent permitted by
law and has consented to such relief and enforcement as provided in
this Agreement and the Indenture.
(bb) It is not necessary under the laws of Australia or any
authority or agency therein in order to enable an owner of any
interest in the Offered Securities or the Guarantee to enforce its
rights under the Offered Securities or the Guarantee or to enable any
of the Underwriters to enforce its rights under this Agreement, as the
case may be, that it should, as a result solely of its holding or
underwriting, as the case may be, of the Offered Securities, be
licensed, qualified or otherwise entitled to carry on business in
Australia or any authority or agency therein; the Offered Securities,
the Indenture and this Agreement are in proper legal form under the
laws of Australia and any political subdivision thereof or authority
or agency therein for the enforcement thereof against the Company
therein; and it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of the Offered Securities,
the Indenture or this Agreement in Australia or any authority or
agency therein that any of them be filed or recorded or enrolled with
any court, authority or agency in, or that any stamp, registration or
similar taxes or duties be paid to any court, authority or agency of
Australia.
(cc) Except as described in the Prospectus, no exchange
control authorization or other authorization, approval, consent or
license of any governmental authority or agency of or in Australia is
required for the payment by the Company of any amounts in United
States dollars pursuant to the terms of the Offered Securities or to
the Underwriters pursuant to this Agreement.
Any certificate signed by any director or officer of the Company or
the Guarantor and delivered to the Representatives or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or
the Guarantor, as the case may be, as to the matters covered thereby.
SECTION 2. Purchase and Sale.
(a) The several commitments of the Underwriters to purchase the
Offered Securities pursuant to this Agreement shall be deemed to have been made
on the basis of the representations and warranties herein contained and shall
be subject to the terms and conditions herein and therein set forth. Offered
Securities which are subject to Delayed Delivery Contracts are herein sometimes
referred to as "Delayed Delivery Offered Securities" and Offered Securities
which are not subject to Delayed Delivery
14
<PAGE> 16
Contracts are herein sometimes referred to as "Immediate Delivery Offered
Securities".
(b) In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company may grant, if so provided in the Terms Agreement, an option
to the Underwriters named in the Terms Agreement, severally and not jointly, to
purchase up to the principal amount of Option Securities set forth therein at
the same price per security (plus, except as otherwise provided in the Terms
Agreement, interest, if any, accrued and unpaid from the Closing Time until the
applicable Date of Delivery), as is applicable to the Offered Securities. Such
option, if granted, will expire 30 days after the date of the Terms Agreement,
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Offered Securities upon notice by the Representatives
to the Company setting forth the principal amount of Option Securities as to
which the several Underwriters are then exercising the option and the time and
date of payment and delivery for such Option Securities. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days and not
earlier than two full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined, unless otherwise
agreed upon by the Representatives, the Company and the Guarantor. If the
option is exercised as to all or any portion of the Option Securities, each of
the Underwriters, acting severally and not jointly, will purchase the
proportion of the total principal amount of Option Securities then being
purchased that the principal amount of Immediate Delivery Offered Securities
each such Underwriter has agreed to purchase, as set forth in the Terms
Agreement, bears to the total principal amount of Immediate Delivery Offered
Securities, subject to such adjustments as the Representatives in their
discretion shall make to eliminate any sales or purchases in less than
authorized denominations.
(c) Payment of the purchase price for, and delivery of, the
Immediate Delivery Offered Securities to be purchased by the Underwriters shall
be made at the place set forth in the Terms Agreement, or at such other place
as shall be agreed upon by the Representatives, the Company and the Guarantor,
on the third business day (unless postponed in accordance with the provisions
of Section 10) following the date of the Terms Agreement or such other time as
shall be agreed upon by the Underwriters, the Company and the Guarantor (such
time and date being referred to as the "Closing Time"). Except as specified in
the Terms Agreement, payment shall be made to the Company by wire transfer
15
<PAGE> 17
in same day funds to the account specified in the Terms Agreement against
delivery to the Underwriters for the respective accounts of the Underwriters of
the Immediate Delivery Offered Securities to be purchased by them (unless the
Offered Securities are issuable only in the form of one or more global
instruments registered in the name of a depository or a nominee of a
depository, in which event the Underwriters' interest in such global instrument
shall be noted in a manner satisfactory to the Underwriters and their counsel).
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates representing, such Option Securities shall be made at such
place as shall be agreed upon by the Representatives and the Company, on each
Date of Delivery as agreed by the Representatives and the Company. The
Immediate Delivery Offered Securities shall be in such denominations and
registered in such names as the Underwriters may request in writing at least
two business days prior to the Closing Time or relevant Date of Delivery, as
the case may be. The Immediate Delivery Offered Securities, which if agreed by
the Representatives may be in temporary form, will be made available for
examination and packaging by the Representatives on or before the first
business day prior to the Closing Time or relevant Date of Delivery, as the
case may be.
(d) If authorized by the Terms Agreement, the Underwriters named
therein may solicit offers to purchase Offered Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit B hereto, with such changes therein as the
Company and the Guarantor may approve. As compensation for arranging Delayed
Delivery Contracts, the Company or the Guarantor, as the case may be, will pay
to the Representatives at the Closing Time, for the account of the
Underwriters, a fee equal to that percentage of the aggregate principal amount
of Delayed Delivery Offered Securities for which Delayed Delivery Contracts are
made at the Closing Time as is specified in the Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types set
forth in the Prospectus Supplement. At the Closing Time the Company and the
Guarantor will enter into Delayed Delivery Contracts (for not less than the
minimum principal amount of Delayed Delivery Offered Securities per Delayed
Delivery Contract specified in the Terms Agreement) with all purchasers
proposed by the Underwriters and previously approved by the Company and the
Guarantor as provided below, but not for an aggregate principal amount of
Offered Securities in excess of that specified in the Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance
of Delayed Delivery Contracts.
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<PAGE> 18
(e) The Representatives are to submit to the Company, at least two
business days prior to the Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the principal amount of Delayed Delivery Offered
Securities to be purchased by each of them, and the names of the institutions
with which the making of Delayed Delivery Contracts is approved by the Company
and the principal amount of Delayed Delivery Offered Securities to be covered
by each such Delayed Delivery Contract.
(f) The principal amount of Offered Securities agreed to be
purchased by the respective Underwriters pursuant to this Agreement shall be
reduced by the principal amount of Delayed Delivery Offered Securities covered
by Delayed Delivery Contracts, as to each Underwriter as set forth in a written
notice delivered by the Underwriters to the Company; provided, however, that
the total principal amount of Immediate Delivery Offered Securities to be
purchased by all Underwriters shall be the total amount of the Offered
Securities covered by this Agreement, less the total principal amount of
Delayed Delivery Offered Securities covered by Delayed Delivery Contracts.
SECTION 3. Covenants of the Company and the Guarantor. The Company
and the Guarantor covenant with each Underwriter as follows:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a Prospectus Supplement in form
approved by the Representatives setting forth the principal amount of
Offered Securities and their terms not otherwise specified in the
Indenture, if applicable, the names of the Underwriters and the
principal amount of the Offered Securities which each severally has
agreed to purchase, the names of the Underwriters, the price at which
the Offered Securities are to be purchased by the Underwriters from
the Company, the initial public offering price, the selling concession
and reallowance, if any, any delayed delivery arrangements, and such
other information as the Representatives and the Company deem
appropriate in connection with the offering of the Offered Securities.
The Company will promptly transmit copies of the Prospectus Supplement
to the Commission for filing pursuant to Rule 424 of the 1933 Act
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus (including the Prospectus Supplement) as the
Representatives shall reasonably request.
(b) If at any time when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities any event shall occur or condition exist
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<PAGE> 19
as a result of which it is necessary, in the opinion of counsel for
the Underwriters or counsel for the Guarantor and the Company, to
amend or supplement the Prospectus in order that the Prospectus will
not include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be
necessary, in the opinion of either such counsel, to amend or
supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company and the Guarantor will promptly amend the
Registration Statement and the Prospectus, whether by filing documents
pursuant to the 1934 Act or the 1933 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and the Prospectus comply with such
requirements.
(c) The Guarantor will make generally available to its
security holders as soon as practicable, but not later than 90 days
after the close of the period covered thereby, an earnings statement
(in form complying with the provisions of Rule 158 of the 1933 Act
Regulations) covering each twelve month period beginning, in each
case, not later than the first day of the Guarantor's fiscal quarter
next following the "effective date" (as defined in such Rule 158) of
the Registration Statement with respect to each sale of Offered
Securities.
(d) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company or the Guarantor will give the Representatives notice of its
intention to file any additional registration statement with respect
to the registration of additional Debt Securities, any amendment to
the Registration Statement (including any filing under Rule 462(b)) or
any amendment or supplement to the Prospectus, whether pursuant to the
1934 Act, the 1933 Act or otherwise; will furnish the Underwriters
with copies of any such amendment or supplement or other documents
proposed to be filed a reasonable time in advance of such proposed
filing or use, as the case may be; and will not file any such
amendment or supplement or other documents in a form to which the
Representatives or counsel to the Underwriters reasonably object.
(e) While the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Offered Securities, the
Company or the Guarantor will notify the
18
<PAGE> 20
Representatives immediately, and promptly confirm the notice in
writing, of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the transmittal to the Commission for filing of any
supplement to the Prospectus or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference into the
Registration Statement or the Prospectus, (iii) the receipt of any
comments from the Commission with respect to the Registration
Statement, the Prospectus or the Prospectus Supplement, (iv) any
request by the Commission for any amendment to the Registration
Statement, or any amendment or supplement to the Prospectus or for
additional information, (v) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose and (vi) any change
in the rating assigned by any nationally recognized statistical rating
organization to any debt securities of the Company or the Guarantor or
the public announcement by any nationally recognized statistical
rating organization that it has under surveillance or review, with
possible negative implications, its rating of any debt securities of
the Company or the Guarantor. The Company and the Guarantor will make
every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the
earliest possible moment.
(f) The Company will deliver to each Underwriter one
conformed copy of the Registration Statement (as originally filed) and
of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by
reference in the Prospectus) and will also deliver to the
Representatives as many conformed copies of the Registration Statement
as originally filed and of each amendment thereto (without exhibits)
as the Representatives may reasonably request. While the Prospectus
is required by the 1933 Act to be delivered in connection with sales
of the Offered Securities, the Company will furnish to the
Representatives as many copies of the Prospectus (including the
Prospectus Supplement) as the Representatives reasonably request.
(g) The Company and the Guarantor will endeavor, in
cooperation with the Underwriters, to qualify the Offered Securities
for offering and sale under the applicable securities laws of such
states and other jurisdictions of the United States as the
Underwriters may designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the
Offered Securities; provided, however, that neither the Company nor
the Guarantor shall be obligated to file any general consent
19
<PAGE> 21
to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company and the
Guarantor will file such statements and reports as may be required by
the laws of each jurisdiction in which the Offered Securities have
been qualified as above provided. The Company or the Guarantor will
promptly advise the Representatives of the receipt by the Company of
any notification with respect to the suspension of the qualification
of the Offered Securities for sale in any such state or jurisdiction
or the initiating or threatening of any proceeding for such purpose.
(h) The Company and the Guarantor, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934
Act in connection with sales of the Offered Securities, will file all
documents required to be filed with the Commission pursuant to
Sections 13, 14 or 15(d) of the 1934 Act within the time periods
prescribed by the 1934 Act and the 1934 Act Regulations.
(i) If specified in the Terms Agreement, between the date of
the Terms Agreement and the completion of the distribution of the
Offered Securities or the Closing Time, whichever is later, or such
other time as is specified in the Terms Agreement, the Company or the
Guarantor will not, without the prior written consent of the
Representatives, offer or sell, grant any option for the sale of, or
enter into any agreement to sell, any debt securities of the Company
or the Guarantor substantially similar to the Offered Securities
(other than the Offered Securities that are to be sold pursuant to
such agreement or commercial paper in the ordinary course of
business).
SECTION 4. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase Offered Securities pursuant to this Agreement
are subject to the accuracy of the representations and warranties on the part
of the Company and the Guarantor herein contained, to the accuracy of the
statements which the Company's and the Guarantor's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance by
the Company and the Guarantor of all of their respective covenants and other
obligations hereunder and under the Terms Agreement, and to the following
further conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission.
20
<PAGE> 22
(b) At the Closing Time, the Representatives shall have
received:
(1) The favorable opinion, dated as of the
Closing Time, of Woodard, Hall & Primm, P.C., counsel to the Company
and the Guarantor, to the effect that:
(i) The Guarantor has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Delaware.
(ii) This Agreement and the applicable Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company and the Guarantor.
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and the Guarantor and
(assuming the Indenture has been duly authorized, executed and
delivered by the Trustee) constitutes a legal, valid and
binding agreement of the Company and the Guarantor,
enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally or by
general equity principles, and further as enforcement thereof
may be limited by (1) requirements that a claim with respect
to any Debt Securities denominated other than in U.S. dollars
(or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(iv) The Guarantee has been duly authorized by
the Guarantor and, when the Offered Securities are executed
and authenticated as specified in the Indenture and delivered
against payment pursuant to the Terms Agreement, as
supplemented by this Agreement, or any Delayed Delivery
Contracts, will, with respect to such Securities, constitute
the valid and binding obligation of the Guarantor, enforceable
in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, moratorium or other
laws relating to or affecting enforcement of creditors' rights
against the Guarantor or by general equity principles, and
further as enforcement thereof may be limited by (1)
requirements that a claim with respect
21
<PAGE> 23
to any Debt Securities denominated other than in U.S. dollars
(or a foreign currency or composite currency judgment in
respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to
applicable law or (2) governmental authority to limit, delay
or prohibit the making of payments outside the United States.
(v) The Offered Securities, in the form(s)
certified by the Company as of the Closing Time, have been
duly authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement, any Delayed
Delivery Contract and the Indenture against payment of the
consideration therefor, will constitute valid and legally
binding obligations of the Company, enforceable in accordance
with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further
as enforcement thereof may be limited by (1) requirements that
a claim with respect to any Debt Securities denominated other
than in U.S. dollars (or a foreign currency or composite
currency judgment in respect of such claim) be converted into
U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental
authority to limit, delay or prohibit the making of payments
outside the United States; and each holder of Offered
Securities will be entitled to the benefits of the Indenture.
(vi) The Offered Securities and the Indenture
conform in all material respects to the statements relating
thereto in the Prospectus; and the statements in the
Prospectus under the captions "Description of Notes" and
"Description of Debt Securities", insofar as they purport to
summarize certain provisions of documents specifically
referred to therein, are accurate summaries of such
provisions.
(vii) The Indenture has been duly qualified
under the 1939 Act.
(viii) The Registration Statement, including any
Rule 462(b) Registration Statement, has been declared
effective by the Commission under the 1933 Act and, to the
best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration
22
<PAGE> 24
Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The Registration Statement, including any Rule
462(b) Registration Statement, and the Prospectus (except for
financial statements and engineering reports and other
financial or engineering data, and except for those parts of
the Registration Statement that constitute the Form T-1, as to
which such counsel need not express any opinion), as of their
respective effective or issue dates, appeared on their face to
be appropriately responsive to the requirements of the 1933
Act and the 1933 Act Regulations.
(x) The information contained in the Prospectus
under the caption "Tax Considerations - Certain United States
Federal Income Tax Considerations", to the extent that such
information constitutes matters of law, summaries of legal
matters or legal conclusions, has been reviewed by such
counsel and is correct.
(xi) The Company has legally, validly, effectively
and irrevocably submitted to the personal jurisdiction of any
federal or state court in the State of New York, County of New
York in any suit or proceeding based on or arising under this
Agreement and has validly and effectively waived any objection
to the venue of a proceeding in any such court as provided in
Section 14 of this Agreement; and the Company has the power to
designate, appoint and empower and pursuant to this Agreement
has validly, effectively and irrevocably designated, appointed
and empowered an agent for service of process in any suit or
proceeding based on or arising under this Agreement in any
federal or state court in the State of New York, County of New
York as provided in Section 14 of this Agreement.
In rendering such opinion, counsel for the Company and the
Guarantor may rely (i) as to matters of fact upon the representations
of officers of the Company and the Guarantor contained in any
certificate delivered to such counsel and certificates of public
officials, which certificates shall be attached to or delivered with
such opinion, (ii) as to matters of the laws of Australia upon the
opinion of Arthur Robinson & Hedderwicks furnished pursuant to this
Agreement and (iii) as to the laws of the State of New York applicable
to the enforceability of the Offered Securities and the Indenture upon
the opinion of Brown & Wood LLP. Such opinion shall be limited to the
General Corporation Law of
23
<PAGE> 25
the State of Delaware, the laws of the State of Texas and the laws of
the United States of America.
(2) The favorable opinion of Zurab S.
Kobiashvili, General Counsel of the Guarantor, to the effect that:
(i) The Guarantor has the corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement
and the Delayed Delivery Contracts, if any.
(ii) To the best knowledge and information of
such counsel, the Guarantor is duly qualified as a foreign
corporation to transact business and is in good standing in
the State of Texas and in each other jurisdiction in which
such qualification is required, except where the failure to so
qualify and be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business
prospects of the Guarantor and its subsidiaries considered as
one enterprise.
(iii) Each Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease
and operate its properties and conduct its business as
described in the Prospectus, and, to the best of such
counsel's knowledge and information, is duly qualified as a
foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, except where the failure to so qualify and be in
good standing would not have a material adverse effect on the
condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the
Guarantor and its subsidiaries considered as one enterprise;
and all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable, and is owned by the
Guarantor, directly or indirectly, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity (except
as described in the Prospectus).
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<PAGE> 26
(iv) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus (except for
financial statements, supporting schedules and other financial
or statistical information as to which no opinion need be
rendered) appeared on their face to be appropriately
responsive when so filed to the requirements of the 1934 Act
and the 1934 Act Regulations.
(v) Neither the Guarantor nor any of its
subsidiaries is required to be registered under the 1940 Act.
(vi) No consent, approval, authorization, order or
decree of any court or governmental authority or agency is
required that has not been obtained in connection with the
consummation by the Company or the Guarantor of the
transactions contemplated by this Agreement, any Delayed
Delivery Contract or the Indenture, except such as have been
obtained or rendered, as the case may be, or as may be
required under the 1933 Act, the 1933 Act Regulations, the
1934 Act, the 1934 Act Regulations or state securities laws;
and the execution and delivery of this Agreement, the Delayed
Delivery Contract, if applicable, and the Indenture and the
consummation of the transactions contemplated herein and
therein have been duly authorized by all necessary corporate
action of the Company and the Guarantor and, to the best
knowledge and information of such counsel, will not conflict
with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Guarantor or any of its
subsidiaries pursuant to, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the
Guarantor or any of its subsidiaries is a party or by which it
or any of them may be bound or to which any of the property or
assets of the Guarantor or any such subsidiary is subject, nor
will such action result in any violation of the provisions of
the charter or by-laws of the Guarantor or any applicable law,
administrative regulation or, to the best knowledge and
information of such counsel, administrative or court order or
decree.
(vii) Neither the Guarantor nor any of its
Significant Subsidiaries is in violation of its charter or
by-laws.
25
<PAGE> 27
(viii) To the best knowledge and information of such
counsel, neither the Guarantor nor any of its subsidiaries is
in violation of any law, ordinance, governmental rule or
regulation or court decree to which it may be subject or has
failed to obtain any license, permit, franchise or other
governmental authorization necessary to the ownership of its
property or to the conduct of its business, which violation or
failure would materially adversely affect the condition,
financial or otherwise, or the results of operations, business
affairs or business prospects of the Guarantor and its
subsidiaries considered as one enterprise; and, to the best
knowledge and information of such counsel, the Guarantor and
its subsidiaries own or possess or have obtained all
governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease or own their
respective properties and to carry on their respective
businesses as presently conducted, except where the failure to
obtain such authorizations would not have a material adverse
effect on the condition, financial or otherwise, or the
results of operations, business affairs or business prospects
of the Guarantor and its subsidiaries considered as one
enterprise.
(ix) To the best of such counsel's knowledge and
information, there is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or
foreign, now pending, or threatened against or affecting, the
Guarantor or any of its subsidiaries, which would be
reasonably expected to result in any material adverse change
in the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the
Guarantor and its subsidiaries considered as one enterprise,
or would materially and adversely affect the properties or
assets thereof or would materially and adversely affect the
consummation of this Agreement, the Delayed Delivery
Contracts, if applicable, or the Indenture or any transaction
contemplated hereby or thereby.
(x) To the best of such counsel's knowledge and
information, there are no contracts or other documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto, the descriptions thereof or
references thereto are correct in all material respects, and,
to the best of such counsel's knowledge
26
<PAGE> 28
and information, no default exists in the due performance or
observance of any material obligation, agreement, covenant or
conditions contained in any contract, or other documents so
described, referred to, filed or incorporated by reference
where the consequences of such default would have a material
adverse effect on the condition, financial or otherwise, or
the results of operations, business affairs or business
prospects of the Guarantor and its subsidiaries considered as
one enterprise.
In rendering such opinion, Zurab S. Kobiashvili may
rely (i) as to matters of fact upon the representations of officers of
the Guarantor contained in any certificate delivered to such counsel
and certificates of public officials, which certificates shall be
attached to or delivered with such opinion; and (ii) as to matters of
the laws of Australia covered thereby, upon the opinion of Arthur
Robinson & Hedderwicks furnished pursuant to this Agreement. Such
opinion shall be limited to the General Corporation Law of the State
of Delaware, the laws of the State of Texas and the laws of the United
States of America.
(3) The favorable opinion, dated as of the
Closing Time, of Arthur Robinson & Hedderwicks, Australian counsel to
the Company, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation under the laws of the
Australian Capital Territory, Australia, and has no
subsidiaries.
(ii) The Company has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement.
(iii) To such counsel's knowledge, after having
made inquiries of the Secretary of the Company, the Company is
duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required to transact business whether by
reason of ownership or leasing of property or the conduct of
business, except where the failure so to qualify could not
reasonably be expected to have a material adverse effect on
the business, operations or condition, financial or otherwise,
or the results of operations of the Company
27
<PAGE> 29
or its ability to perform its obligations hereunder or under
the Offered Securities or the Indenture.
(iv) This Agreement and the applicable Delayed
Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(v) The Indenture has been duly authorized, executed
and delivered by the Company and (assuming the Indenture has
been duly authorized, executed and delivered by the Trustee)
constitutes a legal, valid and binding agreement of the
Company, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
moratorium or other laws relating to or affecting enforcement
of creditors' rights against the Company or by general equity
principles.
(vi) The Offered Securities have been duly
authorized and, when the Offered Securities are executed and
authenticated as specified in the Indenture and delivered
against payment pursuant to the Terms Agreement, as
supplemented by this Agreement, or any Delayed Delivery
Contracts, will constitute valid and binding obligations of
the Company, enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy,
insolvency, moratorium or other laws relating to or affecting
enforcement of creditors' rights against the Company or by
general equity principles.
(vii) No consent, approval, authorization, order or
decree of any court or governmental agency or body in
Australia is required for the execution and delivery by the
Company of this Agreement, the Indenture or the Terms
Agreement or any Delayed Delivery Contract or for the
consummation by the Company of the transactions contemplated
hereby or thereby. The execution and delivery of the this
Agreement, any Delayed Delivery Contract and the Indenture and
the consummation by the Company of the transactions
contemplated by this Agreement and the Offered Securities and
the incurrence of the obligations and consummation of the
transactions contemplated herein and therein have been
authorized by all necessary corporate action of the Company
and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Company pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other
28
<PAGE> 30
agreement or instrument to which the Company is a party or by
which it may be bound or to which any of the property or
assets of the Company is subject, nor will any such action
result in any violation of the Memorandum and Articles of
Association of the Company or any applicable law,
administrative regulation or administrative or court order or
decree.
(viii) No stamp duty or similar tax or duty is
payable under applicable laws or regulations of Australia in
connection with the creation, issuance or delivery of the
Offered Securities, the transfer of any of the Offered
Securities or with respect to the execution and delivery of
this Agreement, the Offered Securities or the Indenture or any
document contemplated hereby or thereby.
(ix) It is not necessary under the laws of Australia
or any authority or agency therein in order to enable an owner
of any interest in the Offered Securities or the Guarantee to
enforce its rights under the Offered Securities or the
Guarantee or to enable any of the Underwriters to enforce its
rights under this Agreement, as the case may be, that it
should, as a result solely of its holding or underwriting of
the Offered Securities, be licensed, qualified or otherwise
entitled to carry on business in Australia or any authority or
agency therein; the Offered Securities, the Indenture and this
Agreement are in proper legal form under the laws of Australia
and any political subdivision thereof or authority or agency
therein for the enforcement thereof against the Company
therein; and it is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence of the
Offered Securities, the Indenture or this Agreement in
Australia or any authority or agency therein that any of them
be filed or recorded or enrolled with any court, authority or
agency in, or that any stamp, registration or similar taxes or
duties be paid to any court, authority or agency of Australia.
(x) The choice of the laws of the State of New York
as the governing law of the Offered Securities, the Indenture
and this Agreement is a valid choice of law under the laws of
Australia and courts of Australia should honor this choice of
law.
(xi) Any final judgment for a definite sum of money
rendered by any court of the State of New York or of the
United States located in the State of New York
29
<PAGE> 31
having jurisdiction under its own domestic laws in respect of
any suit, action or proceeding against the Company based upon
any instruments or agreements entered into for the
consummation of the transactions contemplated in this
Agreement, the Indenture, or the Offered Securities would be
declared enforceable against the Company by the courts of
Australia without reexamination, review of the merits of the
cause of action in respect of which the original judgment was
given or relitigation of the matters adjudicated upon or
payment of any stamp, registration or similar tax or duty,
provided that (A) the judgment is consistent with public
policy in Australia and any relevant political subdivision,
(B) the judgment was not given or obtained by fraud or in a
manner contrary to natural justice, (C) the judgment was not
based on a clear mistake of law or fact, (D) the judgment was
not directly or indirectly for the payment of taxes or other
charges of a like nature or of a fine or other penalty, (E)
the judgment is for a definite sum, and (F) there has been no
prior judgment in another court between the same parties
concerning the same issues as are dealt with in the judgment
to be enforced in Australia. Such counsel is not aware of any
reason why the enforcement in Australia of such a judgment in
respect of any of the instruments or agreements executed for
consummation of the transactions contemplated herein or in the
Prospectus would be contrary to public policy in Australia or
any political subdivision of either of them.
(xii) The Company, and its obligations under this
Agreement, the Offered Securities and the Indenture, are
subject to civil and commercial law and to suit and neither it
nor any of its properties, assets or revenues have any right
of immunity, on the grounds of sovereignty, from any legal
action, suit or proceeding, from the giving of any relief in
any such legal action, suit or proceeding, from setoff or
counterclaim, from the jurisdiction of any Australian, New
York State or U.S. federal court, as the case may be, from
service of process, attachment upon or prior to judgment, or
attachment in aid of execution of judgment, or from execution
or enforcement of a judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement
of a judgment, in any such court, with respect to its
obligations or liabilities or any other matter under or
arising out of or in connection with the Offered Securities,
this Agreement or the Indenture; and, to
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the extent that the Company or any of its properties, assets
or revenues may have or may hereafter become entitled to any
such right of immunity in any such court in which proceedings
may at any time be commenced, the Company may waive such right
to the extent permitted by law and may consent to such relief
and enforcement as provided in this Agreement and the
Indenture.
(xiii) It is not necessary under the laws of
Australia or any authority or agency therein in order to
enable an owner of any interest in the Offered Securities or
the Guarantee to enforce its rights under the Offered
Securities or the Guarantee or to enable any of the
Underwriters to enforce its rights under this Agreement, as
the case may be, that it should, as a result solely of its
holding or underwriting of the Offered Securities, be
licensed, qualified or otherwise entitled to carry on business
in Australia or any authority or agency therein; the Offered
Securities, the Indenture and this Agreement are in proper
legal form under the laws of Australia and any political
subdivision thereof or authority or agency therein for the
enforcement thereof against the Company therein; and it is not
necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Offered Securities, the
Indenture or this Agreement in Australia or any authority or
agency therein that any of them be filed or recorded or
enrolled with any court, authority or agency in, or that any
stamp, registration or similar taxes or duties be paid to any
court, authority or agency of Australia.
(xiv) Except as disclosed in the Prospectus, no
exchange control authorization or any other authorization,
approval, consent or license of any governmental authority or
agency of or in Australia is required for the payment by the
Company of any amounts in United States dollars pursuant to
the terms of the Offered Securities or to the Underwriters
pursuant to this Agreement.
(xv) The information contained in the Prospectus on
page 2 regarding the enforceability of judgments and the
Australian exchange controls, and under the caption "Tax
Considerations - Australian Law" to the extent that such
information constitutes matters of law, summaries of legal
matters or legal conclusions, has been reviewed by such
counsel and is correct.
(xvi) Assuming the Offered Securities are offered and
sold in the manner contemplated by this Agreement (including
the Terms Agreement) and the Prospectus, the receipt of
amounts paid under the Offered Securities in respect of
principal, premium or interest by a holder of Offered
Securities who is not a "resident of Australia" within the
meaning of the Income Tax Assessment Act of 1936 of Australia
(the "Tax Act") does not result in the imposition of, or
liability for, any income tax, withholding tax, assessment or
other charges which are imposed under the Tax Act or by any
taxing authority in Australia. This opinion is subject to any
subsequent interpretative guidelines issued by the Australian
Taxation Office or other department of the Commonwealth
Government of Australia which change or alter the manner in
which the requirements of section 128F have been interpreted
for current purposes.
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In giving their opinion, Arthur Robinson & Hedderwicks may
rely as to matters of New York law upon the opinion of Brown & Wood LLP
furnished pursuant to this Agreement, and as to matters of other
United States law upon the opinion of Woodard, Hall & Primm, P.C.
furnished pursuant to this Agreement.
(4) The favorable opinion, dated as of the
Closing Time, of Brown & Wood LLP, counsel for the Underwriters, with
respect to the matters set forth in clauses (i) to (ix),
inclusive, and (xi) of subsection (b)(1) of this Section.
(5) In giving their opinions required by
subsection (b)(1), (b)(2), (b)(3) and (b)(4), respectively, of this
Section 4, Woodard, Hall & Primm, P.C., Zurab S. Kobiashvili, and
Brown & Wood LLP shall each additionally state that in the course of
the preparation of the Registration Statement and the Prospectus such
counsel has considered the information set forth therein in light of
the matters required to be set forth therein, and has participated in
conferences with officers and representatives of the Company and the
Guarantor including their independent public accountants, during the
course of which the contents of the Registration Statement and the
Prospectus and related matters were discussed. Such counsel need not
independently check the accuracy or completeness of, or otherwise
verify, and accordingly need not pass upon, and accordingly need not
assume responsibility for, the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus and such counsel may, in good faith, rely as to materiality
upon the judgment of officers and representatives of the Company and
the Guarantor. Such counsel shall additionally state that, however,
as a result of such consideration and participation, nothing has come
to such counsel's attention which causes such counsel to believe that
the Registration Statement, at the time it became effective (or, if an
amendment to the Registration Statement or an Annual Report on Form
10-K has been filed by the Guarantor with the Commission subsequent to
the effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such
filing, as the case may be), contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading or that the Prospectus or any amendment or supplement
thereto, at the time the Prospectus was issued at the time any such
amendment or
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supplement was issued or, at the Closing Time included or includes an
untrue statement of a material fact or omitted or omits 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 (it being understood that such counsel need express no
opinion with respect to the financial statements and engineering
reports and other financial or engineering data contained in the
Registration Statement (including the Prospectus) or those parts of
the Registration Statement which constitute the Form T-1).
(c) At the Closing Time, there shall not have been, since the
date of the Terms Agreement or since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
any material adverse change in the condition, financial or otherwise,
or in the results of operations, business affairs or business prospects
of the Company or of the Guarantor and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of
(A) the Chief Executive Officer, Vice Chairman, President or Vice
President and Treasurer, the Assistant Treasurer, the Vice President
and Chief Financial Officer or principal accounting officer of the
Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change with respect to the Company and
its subsidiaries, (ii) the representations and warranties of the
Company contained in Section 1 are true and correct as of the Closing
Time and (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate, and (B) the
Chief Executive Officer, President or Vice President and Treasurer, the
Assistant Treasurer, the Vice President and Chief Financial Officer or
Vice President and Controller of the Guarantor, dated as of the Closing
Time, to the effect that (i) there has been no such material adverse
change with respect to the Guarantor and its subsidiaries, (ii) the
representations and warranties of the Guarantor consolidated as one
enterprise contained in Section 1 are true and correct as of the
Closing Time, (iii) the Guarantor has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the date of such certificate and (iv) no stop
order suspending the effectiveness of the Registration Statement or any
Rule 462(b) Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the Commission.
As used in this Section 4(c), the term "Prospectus" means the
Prospectus in the form first
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provided to the applicable Underwriter or Underwriters for use in
confirming sales of the Offered Securities.
(d) (1) On the date of the Terms Agreement, the
Underwriters shall have received a letter from Arthur Andersen LLP,
dated as of the date hereof and in form and substance satisfactory to
the Underwriters, to the effect that:
(i) They are independent accountants with respect
to the Guarantor and its subsidiaries within the meaning of
the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations.
(ii) It is their opinion that the consolidated
financial statements and supporting schedule(s) included or
incorporated by reference in the Registration Statement and
the Prospectus and audited by them and covered by their
opinions therein comply in form in all material respects with
the applicable accounting requirements of the 1933 Act, the
1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest
available interim financial statements of the Guarantor and
its indicated subsidiaries, a reading of the minute books of
the Guarantor and such subsidiaries since the end of the most
recent fiscal year with respect to which an audit report has
been issued, inquiries of and discussions with certain
officials of the Guarantor and such subsidiaries responsible
for financial and accounting matters with respect to the
unaudited consolidated financial statements included or
incorporated by reference in the Registration Statement and
the Prospectus and the latest available interim unaudited
financial statements of the Guarantor and its subsidiaries,
and such other inquiries and procedures as may be specified in
such letter, and on the basis of such inquiries and
procedures, nothing came to their attention that caused them
to believe that: (A) any material modifications should be made
to the unaudited consolidated financial statements of the
Guarantor and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus for
them to be in conformity with generally accepted accounting
principles in the United States, (B) the unaudited
consolidated financial statements of the Guarantor and its
subsidiaries included or incorporated by reference in the
Registration Statement and the
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Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1934 Act
and the 1934 Act Regulations or (C) at a specified date not
more than three days prior to the date of such letter, there
was any change in the consolidated capital stock, any increase
in consolidated long-term debt or any decrease in the
consolidated net current assets or consolidated net assets of
the Guarantor and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance
sheet of the Guarantor and its subsidiaries included or
incorporated by reference in the Registration Statement and
the Prospectus or, during the period from the date of such
balance sheet to a specified date not more than three days
prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year,
in consolidated revenues or in the total or per-share amounts
of income before extraordinary items or of net income of the
Guarantor and its subsidiaries, except in all instances for
changes, increases or decreases that the Registration
Statement and the Prospectus disclose have occurred or may
occur or except for such exceptions enumerated in such letter
as shall have been agreed to by the Underwriters and the
Guarantor.
(iv) They have performed specified procedures, not
constituting an audit, set forth in their letter, based upon
which nothing came to their attention that caused them to
believe that the unaudited pro forma consolidated condensed
financial statements, if any, included or incorporated by
reference in the Registration Statement or the Prospectus do
not comply as to form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X and that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of those
statements.
(v) In addition to the audit referred to in their
opinions and the limited procedures referred to in clauses
(iii) and (iv) above, they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information which are
included or incorporated by reference in the Registration
Statement and the Prospectus and which are specified by the
Underwriters, and have found such amounts, percentages and
financial information to be in agreement with the
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relevant accounting, financial and other records of the
Guarantor and its subsidiaries identified in such letter.
(2) At the Closing Time, the Underwriters shall
have received from Arthur Andersen LLP, a letter, dated as of
the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection
(d)(1) of this Section, except that the specified date
referred to shall be a date not more than three days prior to
the Closing Time.
(e) At the Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities and the Guarantee as
herein contemplated and related proceedings or in order to evidence
the accuracy and completeness of any of the representations and
warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company and the Guarantor
in connection with the issuance and sale of the Offered Securities as
herein and in the Terms Agreement contemplated shall be satisfactory
in form and substance to the Representatives.
(f) In the event that the Terms Agreement provides for Option
Securities and the Underwriters exercise their option pursuant to
Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company and the
Guarantor contained herein and the statements in any certificates
furnished by the Company and the Guarantor hereunder shall be true and
correct as of each Date of Delivery, and the Underwriters shall have
received:
(1) Unless the Date of Delivery is the Closing Time,
a certificate, dated such Date of Delivery, of the Chief Executive
Officer, President or Vice President and the Treasurer, the Assistant
Treasurer, the principal financial officer or principal accounting
officer of the Guarantor, in their capacities as such, confirming that
the certificate delivered at the Closing Time pursuant to Section 4(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Woodard, Hall & Primm,
P.C., counsel for the Company and the Guarantor, Zurab S. Kobiashvili,
General Counsel for the Guarantor, and Arthur Robinson & Hedderwicks,
Australian Counsel for the Company, in each case, in form and
substance satisfactory to
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counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise substantially to the same effect
as the opinions required by subsections (1), (2) and (3) of Section
4(b) hereof.
(3) The favorable opinion of Brown & Wood LLP,
counsel for the Underwriters, dated such Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the opinion
required by subsections (4) and (5) to Section 4(b) hereof.
(4) Unless the Date of Delivery is the Closing
Time, a letter from Arthur Andersen LLP, in form and substance
satisfactory to the Underwriters and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished
to the Underwriters at the Closing Time pursuant to Section 4(d)
hereof, except that the "specified date" in the letter shall be a date
not more than three days prior to such Date of Delivery.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representatives by notice to the Company and the Guarantor at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 5.
SECTION 5. Payment of Expenses. The Company and the Guarantor,
jointly and severally, will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation and filing of the Registration
Statement, including any Rule 462(b) Registration Statement, and all
amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this
Agreement and the Delayed Delivery Contract(s), if applicable;
(c) the preparation, printing, issuance and delivery of
the Offered Securities, including any fees and expenses relating to
the eligibility and issuance of Offered Securities in book-entry form;
(d) the fees and disbursements of the Company's accountants
and counsel, of the Trustee and its counsel, and of any calculation
agent or exchange rate agent;
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(e) except as otherwise provided in the Terms Agreement, the
reasonable fees and disbursements of counsel to the Underwriters;
(f) the qualification of the Offered Securities under state
securities laws in accordance with the provisions of Section 3(k)
hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of any Blue Sky or Legal
Investment Survey;
(g) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration
Statement and any amendments thereto, and of the Prospectus and any
amendments or supplements thereto, and the delivery by the
Underwriters of the Prospectus and any amendments or supplements
thereto in connection with solicitations or confirmations of sales of
the Offered Securities;
(h) the preparation, reproducing and delivery to the
Underwriters of copies of the Indenture and all amendments,
supplements and modifications thereto;
(i) any fees charged by nationally recognized statistical
rating organizations for the rating of the Offered Securities;
(j) the fees and expenses incurred in connection with any
listing of Offered Securities on a securities exchange;
(k) the fees and expenses incurred with respect to any filing
with the National Association of Securities Dealers, Inc.;
(l) any out-of-pocket expenses of the Underwriters incurred
with the approval of the Company;
(m) the cost of providing any CUSIP or other identification
numbers for the Offered Securities; and
(n) any duties, taxes and other charges payable in connection
with the issuance, sale and delivery of the Offered Securities or the
execution, delivery or performance of this Agreement or the Indenture.
If this Agreement is terminated by the Underwriters in accordance with
the provisions of Section 9, the Company and the Guarantor shall reimburse the
Underwriters for all of their out-
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of-pocket expenses, including the reasonable fees and disbursements of counsel
for the Underwriters.
SECTION 6. Indemnification. (a) The Company and the Guarantor agree,
jointly and severally, to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including any Rule
462(b) Registration Statement, including information deemed to be part
of the Registration Statement pursuant to Rule 430A(b) of the 1933 Act
Regulations, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, unless such untrue statement or omission or such
alleged untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company or the
Guarantor by an Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or
the Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that such
settlement is effected with the written consent of the Company or the
Guarantor, which consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and expenses of counsel chosen by such Underwriter),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or
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body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantor, their respective
directors, each of their officers who signed the Registration Statement, and
each person, if any, who controls the Company or the Guarantor within the
meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), any Rule 462(b) Registration Statement or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Guarantor by such Underwriter expressly for use in the Registration
Statement (or any amendment thereto), any Rule 462(b) Registration Statement or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Section for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
each Underwriter shall have the right to employ counsel to represent jointly
the Underwriters and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity may be sought
by the Underwriters against the Company or the Guarantor under this Section if,
in the judgment of any of the Underwriters, it is advisable for such
Underwriter or Underwriters and controlling persons to be jointly represented
by separate counsel, and in that event the fees and expenses of such
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<PAGE> 42
separate counsel shall be paid by the Company and the Guarantor, acting jointly
and severally. In no event shall the indemnifying parties be liable for the
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties (which shall not unreasonably be withheld), settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 8 or Section 9 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) For purposes of this Section 6, all references to the
Registration Statement, any preliminary prospectus or the Prospectus, or any
amendment or supplement to any of the foregoing, shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copies filed with the Commission pursuant to EDGAR.
SECTION 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantor on the one hand and the Underwriters on the other
hand from the offering of the Offered Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Guarantor on the one hand and of the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative benefits
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received by the Company and the Guarantor on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Offered
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total commission or underwriting discount received by each
Underwriter, in each case as set forth on the cover of the Prospectus
Supplement, bear to the aggregate initial public offering price of the Offered
Securities sold to or through such Underwriter as set forth on such cover. The
relative fault of the Company and the Guarantor on the one hand and the
Underwriters on the other hand 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 the Guarantor 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, the Guarantor
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities sold to or through such Underwriter were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company or the Guarantor, each officer of
the Company or the Guarantor who signed the Registration Statement, and each
person, if any, who controls the
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Company or the Guarantor within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company or the Guarantor, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the principal amount of Offered Securities sold to or through each
Underwriter and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company and the Guarantor
submitted pursuant hereto or thereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person of an Underwriter, or by or on behalf of the
Company or the Guarantor, and shall survive each delivery of and payment for
any Offered Securities.
SECTION 9. Termination.
(a) The Representatives may terminate this Agreement immediately
upon notice to the Company, at any time at or prior to the Closing Time if (i)
there has been, since the date of the Terms Agreement or since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition, financial or otherwise, or in the
results of operations, business affairs or business prospects of the Company or
the Guarantor and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) there shall have occurred
any material adverse change in the financial markets in Australia or the United
States or any outbreak or escalation of hostilities or other national or
international calamity or crisis or any material adverse change or prospective
material adverse change in exchange controls or taxation in Australia or the
United States the effect of which is such as to make it, in the judgment of the
Representatives, impracticable to market the Offered Securities or enforce
contracts for the sale of the Offered Securities, or (iii) trading in any
securities of the Guarantor has been suspended by the Commission or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium
shall have been declared by Australian, U.S. Federal, New York or Texas
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Offered Securities are
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denominated or payable, or (iv) the rating assigned by any nationally
recognized statistical rating organization to any debt securities of the
Company or the Guarantor as of the date of the Terms Agreement shall have been
lowered since that date or if any such rating organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the Company or the
Guarantor, as the case may be, or (v) there shall have come to the attention of
the Representatives any facts that would cause them to reasonably believe that
the Prospectus, at the time it was required to be delivered to a purchaser of
the Offered Securities, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances existing at the time of such delivery,
not misleading. As used in this Section 9, the term "Prospectus" means the
Prospectus in the form first provided to the applicable Underwriter or
Underwriters for use in confirming sales of the related Offered Securities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 5. Notwithstanding any such termination, (i)
the covenants set forth in Section 3(b), (d), and (e) with respect to any
offering of Offered Securities shall remain in effect so long as any
Underwriter owns any such Offered Securities purchased from the Company
pursuant to this Agreement and during the period when the Prospectus is
required to be delivered in connection with sales of the Offered Securities and
(ii) the covenants set forth in Section 3(c), (g), (h) and, if applicable, (i),
the provisions of Section 5, the indemnity agreement set forth in Section 6,
the contribution provisions set forth in Section 7 and the provisions of
Sections 8, 11, 12 and 13 shall remain in effect.
SECTION 10. Default. If one or more of the Underwriters shall fail
at the Closing Time or a Date of Delivery to purchase the Immediate Delivery
Offered Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), then the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but
not less than all, of the Defaulted Securities in such amounts as may be agreed
upon and upon the terms herein set forth. If, however, during such 24 hours
the Representatives shall not have completed such arrangements for the purchase
of all of the Defaulted Securities, then:
(a) if the amount of Defaulted Securities does not exceed
10% of the amount of Immediate Delivery Offered Securities to be
purchased on such date, each of the
44
<PAGE> 46
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of
the number of Immediate Delivery Offered Securities to be purchased on
such date, this Agreement or, with respect to any Date of Delivery
which occurs after the Closing Time, the obligation of the
Underwriters to purchase and of the Company to sell the Option
Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, as the case may be, any of the Representatives, the Company
or the Guarantor shall have the right to postpone the Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements. As used herein, the
term "Underwriter" includes any person substituted for an Underwriter under
this Section 10.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing, either delivered by hand, by mail or by telex, telecopier
or telegram, and any such notice shall be effective when received at the
address specified in this Section 11. Notices to the Underwriters shall be
directed as provided in the Terms Agreement. Notices to the Company shall be
directed to Apache Finance Pty Ltd, 256 St. George's Terrace, Level 3, Perth,
Western Australia, 6000, Australia, Attention:_________ with a copy to the
Guarantor. Notices to the Guarantor shall be directed to Apache Corporation,
2000 Post Oak Boulevard, Suite 100, Houston, Texas 77056-4400, Attention: Vice
President and Treasurer, with a copy to: Mr. Ralph K. Miller, Jr., Woodard,
Hall & Primm, P.C., 7100 Texas Commerce Tower, Houston, Texas 77002. Any party
to this Agreement may from time to time designate another address to receive
notice pursuant to this Agreement by notice duly given in accordance with the
terms of this Section 11.
45
<PAGE> 47
SECTION 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company and the Guarantor and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision herein contained. This
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Offered Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. Governing Law. This Agreement and all the rights and
obligations of the parties hereto shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such State.
SECTION 14. Consent to Jurisdiction; Appointment of Agent to Accept
Service of Process.
(a) The Company irrevocably consents and agrees, for the
benefit of the Holders from time to time of the Offered Securities,
the Underwriters and the other persons referred to in Section 12 that
any legal action, suit or proceeding against it with respect to its
obligations, liabilities or any other matter arising out of or in
connection with this Agreement, the Guarantee or any Offered
Securities may be brought in the courts of the State of New York, or
the courts of the United States of America located in The City of New
York and, until all amounts due and to become due in respect of the
Guarantee and all the Offered Securities have been paid, or until any
such legal action, suit or proceeding commenced prior to such payment
has been concluded, hereby irrevocably consents and submits to the
non-exclusive jurisdiction of each such court in personam, generally
and unconditionally with respect to any action, suit or proceeding for
itself and in respect of its properties, assets and revenues.
(b) The Company hereby irrevocably designates, appoints, and
empowers CT Corporation, with offices currently at 1633 Broadway, New
York, New York 10019, as its designee, appointee and agent to receive,
accept and
46
<PAGE> 48
acknowledge for and on its behalf service of any and all legal
process, summons, notices and documents that may be served in any
action, suit or proceeding brought against the Company in any such
United States federal or state court with respect to its obligations,
liabilities or any other matter arising out of or in connection with
this Agreement, the Guarantee or any Debt Securities and that may be
made on such designee, appointee and agent in accordance with legal
procedures prescribed for such courts. If for any reason such
designee, appointee and agent hereunder shall cease to be available to
act as such, the Company agrees to designate a new designee, appointee
and agent in The City of New York on the terms and for the purposes of
this Section 14 reasonably satisfactory to each of the
Representatives. The Company further hereby irrevocably consents and
agrees to the service of any and all legal process, summons, notices
and documents in any such action, suit or proceeding against the
Company by serving a copy thereof upon the relevant agent for service
of process referred to in this Section 14 (whether or not the
appointment of such agent shall for any reason prove to be ineffective
or such agent shall accept or acknowledge such service) or by mailing
copies thereof by registered or certified air mail, postage prepaid,
to the Company at its address specified in or designated pursuant to
this Agreement, with a copy (similarly mailed) to CT Corporation, 1633
Broadway, New York, New York 10019. The Company agrees that the
failure of any such designee, appointee and agent to give any notice
of such service to it shall not impair or affect in any way the
validity of such service or any judgment rendered in any action or
proceeding based thereon. Nothing herein shall in any way be deemed
to limit the ability of the holders of the Securities, the
Underwriters and the other persons referred to in Section 12 to serve
any such legal process, summons, notices and documents in any other
manner permitted by applicable law or to obtain jurisdiction over the
Company or bring actions, suits or proceedings against the Company in
such other jurisdictions, and in such manner, as may be permitted by
applicable law. The Company hereby irrevocably and unconditionally
waives, to the fullest extent permitted by law, any objection that it
may now or hereafter have to the laying of venue of any of the
aforesaid actions, suits or proceedings arising out of or in
connection with this Agreement brought in the United States federal
courts located in The City of New York or the courts of the State of
New York located in The City of New York and hereby further
irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
47
<PAGE> 49
(c) The provisions of this Section 14 shall survive any
termination of this Agreement, in whole or in part.
SECTION 15. Foreign Taxes. All payments by the Company or the
Guarantor to an Underwriter hereunder, including the Terms Agreement, shall be
made free and clear of, and without deduction or withholding for or on account
of, any and all present and future income, stamp or other taxes, levies,
imposts, duties, charges, fees deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by Australia or any other
jurisdiction in which the Company or the Guarantor has a branch or an office
from which payment is made or deemed to be made, excluding any such tax imposed
in respect of amounts due hereunder (i) by reason of such Underwriter having
some connection with Australia or such other jurisdiction, other than its
participation as dealer hereunder, or (ii) by reason of any income or franchise
tax on the overall net income of an Underwriter imposed by the United States of
America or by the State of New York or any political subdivision of the United
States of America or of the State of New York or by any jurisdiction of which
such Underwriter is a resident, or (iii) if any Underwriter would not be liable
or subject to such impost, levy, collection, withholding or deduction if it
were to make a declaration of nonresidence or other similar claim for exemption
but fails to do so, or (iv) pursuant to any back-up withholding taxes
applicable to any payments to a noncorporate person acting as agent hereunder
who fails to furnish an accurate taxpayer identification number (all such
non-excluded taxes, "Taxes"). If the Company or the Guarantor is prevented by
operation of law or otherwise from paying, causing to be paid or remitting that
portion of amounts payable represented by Taxes withheld or deducted, then
amounts payable under the Terms Agreement or this Agreement shall be increased
to such amount as is necessary to yield and remit to the Underwriter an amount
which, after deduction of all Taxes (including all Taxes payable on such
increased payments), equals the amount that would have been payable if no Taxes
applied.
SECTION 16. Jurisdictional Restrictions on Sale of Offered
Securities.
(a) Each Underwriter severally agrees to use its reasonable
efforts to ensure that (i) no Offered Securities issued by the Company
shall be offered or sold directly or indirectly, in the Commonwealth of
Australia or any state or territory thereof or to a corporation,
partnership, trust or other entity organized under the laws of, or
resident in, the Commonwealth of Australia and (ii) no documents in
relation to an offer of Securities shall be distributed in Australia or
in or from a state or territory thereof.
48
<PAGE> 50
(b) Each Underwriter further severally represents and agrees (i)
that it will not sell any Offered Securities in circumstances
where it knows or has reasonable grounds to believe, without
any independent investigation, that the Offered Securities or
an interest in or right in respect of the Offered Securities,
was being, or would later be, acquired either directly or
indirectly by a resident of Australia or by an entity
specified in Annex B to the Terms Agreement and (ii) as to
such additional matters as may be set forth in the Terms
Agreement.
(c) Each Underwriter agrees to provide the Company, within 14 days
of receipt of a written request from the Company, at the
expense of the Company, such information which reasonably
relates to any Offered Securities as is ordinarily required
for the purposes of obtaining an exemption from Australian
interest withholding tax under Section 128F of the Tax Act or
which reasonably relates to a request from the Australian
Taxation Office for specific information, but only to the
extent such information may be provided in accordance with
applicable law (and in the latter case the Company's request
shall be accompanied by satisfactory evidence of such request
from the Australian Taxation Office). Notwithstanding the
foregoing, nothing shall oblige an Underwriter to disclose the
identity of any investor to whom it sells Offered Securities.
SECTION 17. Waiver of Immunities. To the extent that the Company or
the Guarantor or any of their properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any thereof, from set-off or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution of
judgment, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or any other matter under or arising out of or in
connection with this Agreement (including the Terms Agreement), the Indenture
(including the Guarantee) or the Offered Securities, the Company and the
Guarantor hereby irrevocably and unconditionally waive, and agree not to plead
or claim, any such immunity and consent to such relief and enforcement.
49
<PAGE> 51
SECTION 18. Judgment Currency. The Company and the Guarantor agree
to indemnify each of the Underwriters against any loss incurred by such
Underwriter as a result of any judgment or order being given or made for any
amount due hereunder and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than United States dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order, and (ii) the rate of exchange at which such Underwriter
is able to purchase United States dollars with the amount of the Judgment
Currency actually received by such Underwriter. The foregoing indemnity shall
constitute a separate and independent obligation of each of the Company and the
Guarantor and shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
SECTION 19. Counterparts. Any Terms Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the
executed counterparts thereof shall constitute a single instrument.
50
<PAGE> 52
EXHIBIT A
TERMS AGREEMENT
___________ __, 19__
Apache Finance Pty Ltd
256 St. George's Terrace
Level 3
Perth, Western Australia 6000
Australia
Attention: [Title]
Dear Sirs:
The undersigned underwriters (the "Underwriters") understand that
Apache Finance Pty Ltd (the "Company") proposes to issue and sell $__________
aggregate principal amount of its debt securities unconditionally guaranteed as
to payment of principal, premium, if any, Additional Amounts, if any, and
interest by Apache Corporation, as guarantor (the "Offered Securities").
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Underwriters offer to purchase, severally and not
jointly, the principal amount of Offered Securities set forth below opposite
their respective names at ___% of the principal amount thereof together with
accrued interest thereon from __________, 19__ to the Closing Time:
Principal
Amount of
Underwriter Debt Securities
----------- ---------------
_______________
Total $
===============
The Offered Securities shall have the following terms:
Principal amount:
Form and denomination:
Date of maturity:
Interest rate, rates or formula
(or method of calculation
of interest accrual):
Date from which interest accrues:
A-1
<PAGE> 53
Interest payment dates, if any:
Initial price to public:
Closing Time:
Place of delivery and payment:
Company account for wire transfer of payment:
Redemption provisions, if any:
Lock-up pursuant to Section 3(i) of the
Basic Terms (as defined herein): [yes] [no]
Securities Exchanges, if any, on which application will be
made to list the Offered Securities:
Delayed Delivery Contracts: [authorized] [not authorized]
Delivery date:
Expiration date:
Compensation to Underwriters:
Minimum contract:
Maximum aggregate principal amount:
Additional terms pursuant to Section 16 of the Basic Terms:
Other terms, if any:
All the provisions contained in "Apache Corporation-Debt
Securities--Underwriting Agreement Basic Terms" (the "Basic Terms"), filed as
an exhibit to the Registration Statement relating to the Offered Securities and
attached hereto as Annex A, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined
in such document are used herein as therein defined. Attached hereto is the
Annex B referred to in Section 16 of the Basic Terms.
Any notice by the Company or the Guarantor to the Underwriters
pursuant to this Terms Agreement shall be sufficient if given in accordance
with Section 11 of the Basic Terms addressed to: [insert name and address of
the lead manager or managers or, if only one underwriter is a party hereto, of
such firm] which shall, for all purposes of this Agreement, be the
"Representatives".
Very truly yours,
REPRESENTATIVE[S]
By:
------------------------------------
[Acting for themselves and as
Representative[s] of the
Underwriters]
Accepted:
APACHE FINANCE PTY LTD
By:
--------------------------
Title:
A-2
<PAGE> 54
APACHE CORPORATION
By: ____________________________________
Title:
A-3
<PAGE> 55
ANNEX A
[Basic Terms]
A-4
<PAGE> 56
ANNEX B
[List of "Associates" of the Company for
purposes of the Tax Act and Section 16
of the Basic Terms]
A-5
<PAGE> 57
EXHIBIT B
APACHE FINANCE PTY LTD
[Title of Offered Securities]
Guaranteed by
APACHE CORPORATION
DELAYED DELIVERY CONTRACT
Apache Finance Pty Ltd
256 St. George's Terrace
Level 3
Perth, Western Australia 6000
Australia
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Apache Finance Pty Ltd
(the "Company"), and the Company agrees to sell to the undersigned on
____________, 19__ (the "Delivery Date"), $_____________ principal amount of
the Company's __% Offered Securities due ___________ __, 19__ (the "Offered
Securities"), offered by the Company's Prospectus dated _________ __, 19__, as
supplemented by its Prospectus Supplement dated __________ __, 19__, receipt of
which is hereby acknowledged, at a purchase price of _____% of the principal
amount thereof, plus accrued interest from __________, ______, to the Delivery
Date, and on the further terms and conditions set forth in this contract.
Payment for the securities which the undersigned has agreed to
purchase on the Delivery Date shall be made to the Company or its order by wire
transfer in immediately available funds on the Delivery Date, upon delivery to
the undersigned of the Offered Securities to be purchased by the undersigned in
definitive or global form and in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than three full business days prior to the
Delivery Date.
B-1
<PAGE> 58
The obligation of the undersigned to take delivery of and make payment
for Offered Securities on the Delivery Date shall be subject only to the
conditions that (1) the purchase of Offered Securities to be made by the
undersigned shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company, on or
before ___________, ____, shall have sold to the Underwriters of the Offered
Securities (the "Underwriters") such principal amount of the Offered Securities
as is to be sold to them pursuant to the Terms Agreement dated ____________,
____ between the Company and the Underwriters. The obligation of the
undersigned to take delivery of and make payment for Offered Securities shall
not be affected by the failure of any purchaser to take delivery of and make
payment for Offered Securities pursuant to other contracts similar to this
contract. The undersigned represents and warrants to the Underwriters that its
investment in the Offered Securities is not, as of the date hereof, prohibited
under the laws of any jurisdiction to which the undersigned is subject and
which govern such investment.
Promptly after completion of the sale to the Underwriters, the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to
the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Offered
Securities has been taken by it and no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and that, upon acceptance hereof by the Company
and mailing or delivery of a copy as provided below, this contract will
constitute a valid and binding agreement of the undersigned in accordance with
its terms.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate principal amount of Offered Securities in excess of
$__________ and that the acceptance of any Delayed Delivery Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first come first-served basis. If this contract is acceptable to the Company
and the Guarantor, it is requested that the Company sign the form of acceptance
on a copy hereof and mail or deliver a
B-2
<PAGE> 59
signed copy hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company, the Guarantor and the
undersigned when such copy is so mailed or delivered.
B-3
<PAGE> 60
This Agreement shall be governed by the laws of the State New York
applicable to agreements made and performed in said State.
Yours very truly,
______________________________
(Name of Purchaser)
By____________________________
(Title)
______________________________
______________________________
(Address)
Accepted as of the date
first above written.
Apache Finance Pty Ltd
By:___________________________
Apache Corporation
By:___________________________
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser
with whom details of delivery on the Delivery Date shall be discussed is as
follows: (Please print.)
Telephone No.
Name (Including Area Code)
- ---- ---------------------
B-4
<PAGE> 1
EXHIBIT 4.1
APACHE FINANCE PTY LTD
Company
APACHE CORPORATION,
Guarantor
to
THE CHASE MANHATTAN BANK,
Trustee
-------------------
[FORM OF]
INDENTURE
Dated as of November , 1997
----
Debt Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section
Indenture Section
Section 310(a)(1)
607
(a)(2)
607
(b)
608
Section 312(a)
701
(b)
702
(c)
702
Section 313(a)
703
(c)
703
(d)
703
Section 314(a)
704
(c)(1)
102
(c)(2)
102
(e)
102
(f)
102
Section 316(a) (last sentence)
101 (a)(1)(A)
502, 512
(a)(1)(B)
513
(b)
508
Section 317(a)(1)
503
(a)(2)
504
(b)
1003
Section 318(a)
108
- -------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to and
including 317 are a part of and govern every qualified indenture, whether or
not physically contained therein.
<PAGE> 3
<TABLE>
<S> <C>
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION . . . . . . . . . . . . . . . 2
Section 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Change in Control Purchase Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Change in Control Purchase Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Change in Control Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Consolidated Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Conversion Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
CUSIP number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Dollars or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
European Monetary System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Guarantor Request and Guarantor Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Independent Public Accountants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Limited Recourse Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
New York Banking Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Ordinary Course Lien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Sale\Leaseback Transaction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Security or Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Subsidiary Assignee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Subsidiary Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Successor Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
U.S. Depository or Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Voting Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 102. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 105. Notices, etc. to Trustee, the Company and the Guarantor. . . . . . . . . . . . . . . . . . 17
Section 106. Notice to Holders of Securities; Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 107. Language of Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 108. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 109. Effect of Headings and Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 110. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 111. Separability Clause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 112. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 113. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 114. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 115. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 116. Judgment Currency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE TWO
SECURITIES AND GUARANTEE FORMS . . . . . . . . . . . . . . . . . . . . 20
Section 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 202. Guarantee by Guarantor: Form of Guarantee . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 203. Form of Trustee's Certificate of Authentication. . . . . . . . . . . . . . . . . . . . . . 24
Section 204. Securities in Global Form. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 302. Currency; Denominations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 303. Execution, Authentication, Delivery and Dating. . . . . . . . . . . . . . . . . . . . . . . 29
Section 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 305. Registration, Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . . . . . . . . . . . . . . . . . 35
Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 310. Computation of Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . 40
Section 401. Satisfaction and Discharge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
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Section 402. Defeasance and Covenant Defeasance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 403. Application of Trust Money. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 404. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 502. Acceleration of Maturity; Rescission and Annulment. . . . . . . . . . . . . . . . . . . . . 48
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. . . . . . . . . . . . . . 49
Section 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 505. Trustee May Enforce Claims without Possession of Securities, Guarantees or Coupons. . . . . 51
Section 506. Application of Money Collected. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 507. Limitations on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional
Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 509. Restoration of Rights and Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 511. Delay or Omission not Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 512. Control by Holders of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 514. Waiver of Stay or Extension Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 601. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 603. Not Responsible for Recitals or Issuance of Securities. . . . . . . . . . . . . . . . . . . 58
Section 604. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 605. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 606. Compensation and Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 607. Corporate Trustee Required; Eligibility. . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 608. Resignation and Removal; Appointment of Successor. . . . . . . . . . . . . . . . . . . . . 59
Section 609. Acceptance of Appointment by Successor. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 610. Merger, Conversion, Consolidation or Succession to Business. . . . . . . . . . . . . . . . 62
Section 611. Appointment of Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR . . . . . . . . . . . . . 65
Section 701. Company and Guarantor to Furnish Trustee Names and Addresses of Holders. . . . . . . . . . 65
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Section 702. Preservation of Information; Communications to Holders. . . . . . . . . . . . . . . . . . . 65
Section 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 704. Reports by Company and Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES . . . . . . . . . . . . . . . . . . . . 67
Section 801. Guarantor May Consolidate, Etc., Only on Certain Terms. . . . . . . . . . . . . . . . . . . 67
Section 802. Subsidiary Issuers May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . . 67
Section 803. Successor Person Substituted for Company or Guarantor . . . . . . . . . . . . . . . . . . . 70
Section 804. Assumption by the Guarantor of the Company's Obligations . . . . . . . . . . . . . . . . . 70
Section 805. Indemnification Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . 72
Section 901. Supplemental Indentures without Consent of Holders. . . . . . . . . . . . . . . . . . . . . 72
Section 902. Supplemental Indentures with Consent of Holders. . . . . . . . . . . . . . . . . . . . . . 74
Section 903. Execution of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 905. Reference in Securities to Supplemental Indentures. . . . . . . . . . . . . . . . . . . . . 75
Section 906. Conformity with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1001. Payment of Principal, any Premium, Interest
and Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1002. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 1003. Money for Securities Payments to Be Held in Trust. . . . . . . . . . . . . . . . . . . . . 78
Section 1004. Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 1005. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 1006. Limitation on Sale/Leaseback Transactions. . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 1007. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 1008. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 1009. Company Statement as to Compliance; Notice of Certain Defaults. . . . . . . . . . . . . . . 85
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . 86
Section 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 1102. Election to Redeem; Notice to Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 1103. Selection by Trustee of Securities to be Redeemed. . . . . . . . . . . . . . . . . . . . . 86
Section 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 1105. Deposit of Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 1106. Securities Payable on Redemption Date. . . . . . . . . . . . . . . . . . . . . . . . . . . 88
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Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS . . . . . . . . . . . . . . . . . . . 90
Section 1201. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE THIRTEEN
SECURITIES IN FOREIGN CURRENCIES . . . . . . . . . . . . . . . . . . . . 90
Section 1301. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . 91
Section 1401. Purposes for Which Meetings May Be Called. . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1402. Call, Notice and Place of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1403. Persons Entitled to Vote at Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 1404. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 1406. Counting Votes and Recording Action of Meetings. . . . . . . . . . . . . . . . . . . . . . 94
ARTICLE FIFTEEN
PURCHASES OF SECURITIES UPON CHANGE IN CONTROL . . . . . . . . . . . . . . . . 94
Section 1501. Purchase of Securities at Option of the Holder upon
Change in Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 1502. Effect of Change in Control Purchase Notice . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 1503. Deposit of Change in Control Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 1504. Covenant to Comply With Securities Laws
Upon Purchase of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 1505. Repayment to the Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
ARTICLE SIXTEEN
GUARANTEES . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 1601. Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 1602. Execution and Delivery of Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
ARTICLE SEVENTEEN
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 1701. Submission to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 1702. Stamp Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
</TABLE>
vi
<PAGE> 9
INDENTURE, dated as of _______________, 1997 (the
"Indenture"), among APACHE FINANCE PTY LTD, a proprietary company with limited
liability duly organized and existing under the laws of the Australian Capital
Territory, Australia (hereinafter called the "Company") (ACN 080 571 900),
having its principal executive office located at 256 St. George's Terrace,
Level 3, Perth, Western Australia 6000, Australia, APACHE CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter called the "Guarantor"), having its principal executive office
located at One Post Oak Central, 2000 Post Oak Boulevard, Suite 100, Houston,
Texas 77056-4400, and THE CHASE MANHATTAN BANK, a banking corporation duly
organized and existing under the laws of the State of New York (hereinafter
called the "Trustee"), having its Corporate Trust Office located at 450 West
33rd Street, 15th Floor, New York, New York 10001.
RECITALS
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior
unsecured debentures, notes or other evidences of Indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more
series and to have such other provisions as shall be fixed as provided in this
Indenture. All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
For value received, the Guarantor has duly authorized the
execution and delivery of this Indenture to provide for the issuance of the
Guarantees by it with respect to the Securities as set forth in this Indenture.
The Guarantor desires to make the Guarantees provided for
herein, and has determined that such Guarantees are necessary and convenient to
the conduct of the business of the Company, an indirect, wholly-owned
subsidiary of the Guarantor.
All things necessary to make the Guarantees, when executed by
the Guarantor and endorsed on the Securities authenticated and delivered
hereunder, the valid obligations of the Guarantor, and to make this Indenture a
valid agreement of the Guarantor, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
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<PAGE> 10
For and in consideration of the premises and the
purchase of the Securities by the Holders (as herein defined) thereof,
it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof and
any Coupons (as herein defined) as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of this
Indenture:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the terms "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the
date of such computation;
(d) the words "herein", "hereof", "hereto" and "hereunder"
and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision; and
(e) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Company in respect of certain taxes, assessments or
other governmental charges imposed on Holders specified therein and which are
owing to such Holders.
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<PAGE> 11
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control", when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have the meanings
correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official
language of the place of publication or in the English language, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any day
that is a Business Day in the place of publication.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"Board of Directors" means, when used with reference to the
Company or the Guarantor, either the board of directors of the Company or the
Guarantor or any duly authorized committee of such board of directors of the
Company or the Guarantor, as the case may be.
"Board Resolution" means, when used with reference to the
Company or the Guarantor, a copy of one or more resolutions, certified by the
Secretary or an Assistant Secretary of the Company or the Guarantor, as the
case may be, to have been duly adopted by its respective Board of Directors and
to be in full force and effect on the date of such certification, delivered to
the Trustee.
"Business Day", with respect to any Place of Payment or other
location, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day other than a Saturday, Sunday or other day on
which banking institutions in such Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"Change in Control" has the meaning specified in Section 1501.
"Change in Control Purchase Date" has the meaning specified
in Section 1501.
"Change in Control Purchase Notice" has the meaning specified
in Section 1501.
"Change in Control Purchase Price" has the meaning specified
in Section 1501.
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<PAGE> 12
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture 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" includes any stock of any class of the Company
or the Guarantor, as the case may be, which has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company or the Guarantor, as the
case may be, and which is not subject to redemption by the Company or the
Guarantor, as the case may be.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order, as the case may be, signed in the name of the Company
by the Chairman of the Board of Directors, a Vice Chairman, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Consolidated Net Worth" has the meaning specified in Section
1005.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency (other than the ECU) both by the government of the country or the
confederation which issued such Foreign Currency and for the settlement of
transactions by a central bank or other public institutions of or within the
international banking community, (ii) the ECU both within the European Monetary
System and for the settlement of transactions by public institutions of or
within the European Union or (iii) any currency unit or composite currency
other than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of original execution
of this Indenture is located at 450 West 33rd Street, 15th Floor, New York, New
York 10001.
"Corporation" includes corporations, companies and limited
liability companies and, except for purposes of Article Eight, associations and
business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency", with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on or any
Additional Amounts with respect to any Security, means Dollars or the Foreign
Currency, as the case may be, in which such payment, deposit or other
4
<PAGE> 13
transfer is required to be made by or pursuant to the terms hereof or such
Security and, with respect to any other payment, deposit or transfer pursuant
to or contemplated by the terms hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to
a Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of
legal tender for payment of public or private debts in the United States of
America.
"ECU" means the European Currency Units as defined and revised
from time to time by the Council of the European Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Community.
"European Union" means the European Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.
"GAAP" means such accounting principles as are generally
accepted in the United States of America as of the date or time of any
computation required hereunder.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America or such other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a full
faith and credit obligation by the United States of America or such other
government or governments, and which, in the case of (i) or (ii), are not
callable or redeemable at the option of the issuer or issuers thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of or other amount with respect to any such
Government Obligation held by such custodian for the account of the holder of
5
<PAGE> 14
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 Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation
evidenced by such depository receipt.
"Guarantee" means any guarantee of the Guarantor endorsed on a
Security authenticated and delivered pursuant to this Indenture and shall
include the guarantees set forth in Section 202.
"Guarantor" means the Person named as "Guarantor" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall include such successor corporation.
"Guarantor Request" and "Guarantor Order" mean, respectively,
a written request or order, as the case may be, signed in the name of the
Guarantor by the Chairman of the Board, a Vice Chairman, the President or a
Vice President, and by the Treasurer or an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Guarantor and delivered to the Trustee.
"Holder", in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security Register and,
in the case of any Bearer Security, means the bearer thereof and, in the case
of any Coupon, means the bearer thereof.
"Indebtedness", with respect to any Person, means (a)
indebtedness for borrowed money and deferred payment obligations representing
the unpaid purchase price of real or personal property of, or guaranteed by,
such Person, other than accounts payable arising in the ordinary course of
business payable on terms customary in the trade, (b) indebtedness secured by
Liens or payable out of the proceeds of production from property, (c)
indebtedness which is evidenced by mortgages, notes, bonds, debentures,
acceptances or other instruments, (d) indebtedness which must be capitalized as
liabilities under GAAP, (e) liabilities under interest rate swap, exchange,
collar or cap agreements and all other agreements or arrangements designed to
protect against fluctuations in interest rates or currency exchange rates, (f)
liabilities under commodity hedge, commodity swap, exchange, collar or cap
agreements, fixed price agreements and all other agreements or arrangements
designed to protect against fluctuations in oil and gas prices, (g) guarantees
and endorsements of obligations of others, directly or indirectly, and all
other repurchase agreements and indebtedness in effect guaranteed through an
agreement, contingent or otherwise, to purchase such indebtedness, or to
purchase or sell property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of the indebtedness or to assure
the owner of the indebtedness against loss, or to supply funds to or in any
manner invest in the debtor, or otherwise to assure a creditor against loss
(but excluding guarantees and endorsements of notes, bills and checks made in
the ordinary course of business); and (h) indebtedness relative to the amount
of all letters of credit; provided, however, that such term shall not include
any amounts included as deferred credits on the financial
6
<PAGE> 15
statements of such Person or of a consolidated group including such Person, and
computed in accordance with GAAP.
"Indenture" means this instrument as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and, with respect to
any Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm
of accountants that, with respect to the Company, the Guarantor and any other
obligor under the Securities, the Guarantees or the Coupons, are independent
public accountants within the meaning of the Securities Act of 1933, as
amended, and the rules and regulations promulgated by the Commission
thereunder, who may be the independent public accountants regularly retained by
the Company, the Guarantor or any such other obligor or who may be other
independent public accountants. Such accountants or firm shall be entitled to
rely upon any Opinion of Counsel as to the interpretation of any legal matters
relating to this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or
less than the principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"Interest Payment Date", with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays", with respect to any Place of Payment or
other location, means a Saturday, a Sunday or a day on which banking
institutions in such Place of Payment or other location are not authorized or
obligated to be open.
"Lien" has the meaning specified in Section 1005.
"Limited Recourse Indebtedness" means Indebtedness of a Person
for which there is no recourse whatsoever to such Person for the repayment
thereof other than recourse limited to the cash flow from the assets
constituting collateral therefor and recourse to the extent necessary to enable
amounts to be claimed in respect of such Indebtedness upon an enforcement of
any Lien on any such assets; provided that (a) the extent of such recourse is
limited solely to the amount of any recoveries
7
<PAGE> 16
made on any such enforcement, and (b) the holder of such Indebtedness is not
entitled, by virtue of any right or claim arising out of or in connection with
such Indebtedness to commence proceedings for the winding up or dissolution of,
or to appoint or procure the appointment of any receiver, trustee or similar
person or official in respect of, such Person or any of its assets (other than
the assets the subject of such Lien).
"Maturity", with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date and Change in Control Purchase Date.
"New York Banking Day" has the meaning specified in Section
116.
"Office" or "Agency", with respect to any Securities, means an
office or agency of the Company and the Guarantor maintained or designated in a
Place of Payment for such Securities pursuant to Section 1002 or any other
office or agency of the Company maintained or designated for such Securities
pursuant to Section 1002 or, to the extent designated or required by Section
1002 in lieu of such office or agency, the Corporate Trust Office of the
Trustee.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company or the Guarantor, as applicable, that complies with
the requirements of Section 314(e) of the Trust Indenture Act and is delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel for the Company or the Guarantor, as the case
may be, or other counsel who shall be reasonably acceptable to the Trustee,
that, if required by the Trust Indenture Act, complies with the requirements of
Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
"Ordinary Course Lien" has the meaning specified in Section
1005.
"Original Issue Discount Security" means a Security issued
pursuant to this Indenture which provides for declaration of an amount less
than the principal face amount thereof to be due and payable upon acceleration
pursuant to Section 502.
"Outstanding", when used with respect to any Securities,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore canceled by the Trustee
or the Security Registrar or delivered to the Trustee
or the Security Registrar for cancellation;
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<PAGE> 17
(b) any such Security for whose payment either at the
Maturity thereof or upon the Company becoming
obligated (subject to withdrawal of any Change in
Control Purchase Notice) to pay the Change in Control
Purchase Price, money in the necessary amount has
been theretofore deposited pursuant hereto (other
than pursuant to Section 402) with the Trustee or any
Paying Agent (other than the Company or the
Guarantor) in trust or set aside and segregated in
trust by the Company or the Guarantor, as the case
may be (if the Company or the Guarantor shall act as
its own Paying Agent), for the Holders of such
Securities and any Guarantees or Coupons appertaining
thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company
or the Guarantor has effected defeasance or covenant
defeasance pursuant to Section 402, except to the
extent provided in Section 402; and
(d) any such Security which has been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a
bona fide purchaser in whose hands such Security is a
valid obligation of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal
amount of an Original Issue Discount Security that may be counted in making
such determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that pursuant to the
terms of such Original Issue Discount Security would be declared (or shall have
been declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of original issuance of
such Security of the amount determined as provided in (i) above) of such
Security, and (iv) Securities beneficially owned by the Company, the Guarantor
or any other obligor upon the Securities or any Affiliate of the Company, the
Guarantor or such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making any such determination or relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee knows to be so owned shall be
9
<PAGE> 18
so disregarded. Securities so owned which shall have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee (A) the pledgee's right so to act with respect to such
Securities and (B) that the pledgee is not the Company, the Guarantor or any
other obligor upon the Securities or any Coupons appertaining thereto or an
Affiliate of the Company, the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, or any premium or interest on, or any Additional Amounts
with respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, limited liability company and, except for
purposes of Article Eight, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the
place or places where the principal of, or any premium or interest on, or any
Additional Amounts with respect to such Security are payable as provided in or
pursuant to this Indenture or such Security.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same Indebtedness as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security or
any Security to which a mutilated, destroyed, lost or stolen Coupon appertains
shall be deemed to evidence the same Indebtedness as the lost, destroyed,
mutilated or stolen Security or the Security to which a mutilated, destroyed,
lost or stolen Coupon appertains.
"Redemption Date", with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture or such Security.
"Redemption Price", with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant
to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any
Registered Security on any Interest Payment Date therefor means the date, if
any, specified in or pursuant to this Indenture or such Security as the
"Regular Record Date".
"Required Currency" has the meaning specified in Section 116.
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<PAGE> 19
"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee in its Corporate Trust Office with direct
responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Sale\Leaseback Transaction" has the meaning specified in
Section 1006.
"Security" or "Securities" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of Indebtedness, as the
case may be, authenticated and delivered under this Indenture; provided,
however, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities", with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the following,
whether outstanding as of the date of execution of the Indenture or thereafter
incurred, created or assumed:
(a) all indebtedness of the Guarantor, the Company or any
other Subsidiary, as applicable, for money borrowed (including,
without limitation, any indebtedness secured by a mortgage,
conditional sales contract or other lien which is (i) given to secure
all or part of the purchase price of property subject thereto, whether
given to the vendor of such property or to another, or (ii) existing
on property at the time of acquisition thereof);
(b) all indebtedness of the Guarantor, the Company or any
other Subsidiary, as applicable, evidenced by notes, debentures,
bonds, commercial paper or other securities sold by the Guarantor, the
Company or any other Subsidiary, as applicable, for money;
(c) all lease obligations of the Guarantor, the Company
or any other Subsidiary, as applicable, which are capitalized on the
books of the Guarantor or the Company in accordance with generally
accepted accounting principles;
(d) all indebtedness of others of the kinds described in
either of the preceding clauses (a) or (b) and all lease obligations
of others of the kind described in the preceding clause (c) assumed by
or guaranteed in any manner by the Guarantor, the Company or any other
Subsidiary or in effect guaranteed by the Guarantor, the Company or
any other Subsidiary, as applicable, through an agreement to purchase,
contingent or otherwise;
(e) all obligations of the Guarantor, the Company or any
other Subsidiary, as applicable, with respect to letters of credit
issued in connection with indebtedness of others
11
<PAGE> 20
of the kind described in the preceding clauses (a) or (b) or lease
obligations of the kind described in the preceding clause (c); and
(f) all renewals, extensions or refundings of
indebtedness of the kinds described in any of the preceding clauses
(a), (b) and (d), all renewals or extensions of lease obligations of
the kinds described in either of the preceding clauses (c) and (d) and
all renewals or extensions of obligations with respect to letters of
credit of the kind described in the preceding clause (e);
which, in each case, is an obligation payable by its terms more than one year
from the date of incurrence thereof and should be shown on a balance sheet as a
liability under GAAP; unless, in the case of any particular indebtedness,
lease, obligation, renewal, extension or refunding, the instrument or lease
creating or evidencing the same or the assumption or guarantee of the same
expressly provides that such indebtedness, lease, obligation, renewal,
extension or refunding is subordinate in right of payment to or is not at least
pari passu with the Securities or the Guarantees. Notwithstanding the
foregoing, "Senior Indebtedness" does not include indebtedness owing, directly
or indirectly, to any Affiliate or employee of the Guarantor or the Company, as
applicable, or arising under or in respect of any employee benefit plan of the
Guarantor, the Company or any of their respective Affiliates.
"Special Record Date" for the payment of any Defaulted
Interest on any Registered Security means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity" with respect to any Security or any
installment of principal thereof or interest thereon or any Additional Amounts
with respect thereto, means the date established by or pursuant to this
Indenture or such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is, or such Additional
Amounts are, due and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Guarantor, the Company or one or more other Subsidiaries owns
or controls directly or indirectly more than 50% of the shares of Voting Stock.
"Subsidiary Assignee" shall have the meaning set forth in
Section 802.
"Subsidiary Issuer" means the Company or any other Subsidiary
issuing any relevant series of Securities.
"Successor" shall have the meaning set forth in Section 802.
"Successor Additional Amounts" shall have the meaning set
forth in Section 802.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time
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to time by rules or regulations adopted by the Commission under or in
furtherance of the purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
"United States", except as otherwise provided in or pursuant
to this Indenture or any Security, means the United States of America
(including the states thereof and the District of Columbia), its territories
and possessions and other areas subject to its jurisdiction.
"United States Alien", except as otherwise provided in or
pursuant to this Indenture or any Security, means any Person who, for United
States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust,
or a foreign partnership one or more of the members of which is, for United
States Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any
Security issuable or issued in the form of one or more global Securities, the
Person designated as U.S. Depository or Depository by the Company in or
pursuant to this Indenture, which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, if so provided with respect to any
Security, any successor to such Person. If at any time there is more than one
such Person, "U.S. Depository" or "Depository" shall mean, with respect to any
Securities, the qualifying entity which has been appointed with respect to such
Securities.
"Vice President", when used with respect to the Guarantor, the
Company or the Trustee, means any vice president, whether or not designated by
a number or a word or words added before or after the title "Vice President".
"Voting Stock" means stock of a Corporation of the class or
classes having general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such
Corporation provided that, for the purposes hereof, stock which carries only
the right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.
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Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon
any application or request by the Guarantor or the Company, as applicable, to
the Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents or any of them is specifically
required by any provision of this Indenture relating to such particular
application or request, no additional certificate or opinion need be furnished.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Guarantor or
the Company, as applicable, may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion with respect to the
matters upon which his certificate or opinion is based are erroneous. Any such
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Guarantor or the Company, as applicable, stating that the information with
respect to such factual matters is in the possession of the Guarantor or the
Company, as applicable, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need not,
be consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If, but only if, Securities of a series
are issuable as
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Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Guarantor or the Company, as the case may be.
Such instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee, the Guarantor or the
Company, and any agent of the Trustee or the Company or the Guarantor, if made
in the manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 1406.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or
pursuant to this Indenture to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such U.S. Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any permanent
global Security held by a U.S. Depository entitled under the procedures of such
U.S. Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other Act provided in or pursuant to this Indenture to be made, given or
taken by Holders. If such a record date is fixed, the Holders on such record
date or their duly appointed proxy or proxies, and only such Persons, shall be
entitled to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other Act, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization,
direction, notice, consent, waiver or other Act shall be valid or effective if
made, given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine; and the Trustee may in any instance require further
proof with respect to any of the matters referred to in this Section.
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(c) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the commencement and
the date of the termination of holding the same, shall be proved by the
Security Register.
(d) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary reasonably acceptable to the
Trustee, the Guarantor and the Company, wherever situated, if such certificate
shall be deemed by the Company,the Guarantor and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Company, the Guarantor and the Trustee to be satisfactory. The
Trustee, the Company and the Guarantor may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership, principal
amount and serial numbers of Bearer Securities held by the Person so executing
such instrument or writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner which
the Trustee, the Guarantor and the Company deem sufficient.
(e) If the Company or the Guarantor shall solicit from the
Holders of any Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may at its option
(but is not obligated to), by Board Resolution, fix in advance a record date
for the determination of Holders of Registered Securities entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other
Act. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of Registered Securities of record at
the close of business on such record date shall be deemed to be Holders for the
purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
of Registered Securities shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six
months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company or the Guarantor in reliance
thereon, whether or not notation of such Act is made upon such Security.
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Section 105. Notices, etc. to Trustee, the Company and the
Guarantor.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder, the Guarantor or the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trustee Administration Department,
or
(b) the Guarantor or the Company by the Trustee or any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Guarantor or the Company, as applicable,
addressed to the attention of its Treasurer at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the
Trustee, the Guarantor or the Company, as applicable.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(a) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(b) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper
in such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder of a Registered Security shall
affect the sufficiency of such notice with respect to other Holders of
Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given or
provided. In case by reason of the suspension of regular mail service or by
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reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither failure to give
notice by publication to Holders of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of any
notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture shall be
in the English language, except that, if the Company or the Guarantor so
elects, any published notice may be in an official language of the country of
publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
or the Guarantor, as applicable, shall bind either party's successors and
assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture, any Security, any
Coupon or the Guarantee shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, or in
the Guarantees, express or implied, shall give to any Person, other than the
parties hereto, any Security Registrar, any Paying Agent and their successors
hereunder and the Holders of Securities or Coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities, any Coupons and the Guarantees
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made or instruments entered into and, in each
case, performed in said state without regard to the conflict of laws principles
thereof.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or
any Securities, in any case where any Interest Payment Date, Business Day
following any Change in Control Purchase Date or Stated Maturity or Maturity of
any Security shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security, Coupon or
Guarantee other than a provision in any Security, Coupon or Guarantee that
specifically states that such provision shall apply in lieu hereof) payment
need not be made at such Place of Payment on such date, and no interest shall
accrue on the amount payable on such date or at such time for the period from
and after such Interest Payment Date, Business Day following any Change in
Control Purchase Date, Stated Maturity or Maturity, as the case may be, to the
next succeeding Business Day.
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Section 115. Counterparts.
This Indenture may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 116. Judgment Currency.
Each of the Company and the Guarantor 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 premium or interest, if any, or
Additional Amounts 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 New York Banking Day
preceding that on which a final unappealable judgment is given 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 clause (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 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. For
purposes of the foregoing, "New York Banking Day" means any day except a
Saturday, Sunday or a legal holiday in The City of New York or a day on which
banking institutions in The City of New York are authorized or obligated by
law, regulation or executive order to be closed.
ARTICLE TWO
SECURITIES AND GUARANTEE FORMS
Section 201. Forms Generally.
Each Guarantee, Registered Security, Bearer Security, Coupon
and temporary or permanent global Security issued pursuant to this Indenture
shall be in the form established by or pursuant to a Board Resolution, an
Officers' Certificate or in one or more indentures supplemental hereto, shall
have such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by or pursuant to this Indenture or any indenture
supplemental hereto and may have such letters, numbers or other marks of
identification and such legends or endorsements placed
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thereon as may, consistently herewith, be determined by the officers executing
such Guarantee, Security or Coupon as evidenced by their execution of such
Guarantee, Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or
any Securities, the Securities shall be issuable in registered form without
Coupons and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons and Guarantees
shall be printed, lithographed or engraved or produced by any combination of
these methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers of the Company
executing such Securities, Coupons or Guarantees, as evidenced by their
execution of such Securities, Coupons or Guarantees.
Section 202. Guarantee by Guarantor: Form of Guarantee.
The Guarantor by its execution of this Indenture hereby agrees with
each Holder of a Security authenticated and delivered by the Trustee, and with
the Trustee on behalf of each such Holder, to be irrevocably and
unconditionally bound by the terms and provisions of the Guarantee set forth
below and authorizes the Chairman of the Board, President or Vice President or
the Treasurer of the Guarantor to execute, manually or by facsimile signature
in the name and on behalf of the Guarantor, and to confirm such Guarantee to
the Holder of each such Security by its execution and delivery of each such
Security, with such Guarantee endorsed thereon, authenticated and delivered by
the Trustee. When delivered pursuant to the provisions of Section 303 hereof,
the Guarantee so set forth on the Security shall bind the Guarantor
notwithstanding the fact that such Guarantee does not bear the signature of the
Guarantor.
Guarantees to be endorsed on the Securities shall, subject to Section
201, be in substantially the form set forth below:
GUARANTEE
For value received, Apache Corporation, a corporation organized under
the laws of the State of Delaware (herein called the "Guarantor,"
which term includes any successor corporation under the Indenture
referred to in the Security upon which this Guarantee is endorsed),
hereby irrevocably and unconditionally guarantees to the Holder of the
Security upon which this Guarantee is endorsed and to the Trustee on
behalf of the Trustee and such Holder the due and punctual payment of
the principal of, and any premium, and interest on, and any Additional
Amounts with respect to, such Security, and any other amount due and
payable pursuant to the terms of the Indenture or payments referred to
therein if any, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call
for redemption, repurchase, or otherwise, according to the terms
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of such Security and of the Indenture referred to therein. In case of
the failure of Apache Finance Pty Ltd, a proprietary company with
limited liability organized under the laws of the Australian Capital
Territory, Australia (herein called the "Company," which term includes
any successor corporation under such Indenture), punctually to make
any such payment of principal, or any premium or interest on or any
Additional Amounts with respect to such Security, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise, and
as if such payment were made by the Company. The Guarantor hereby
agrees that its obligations hereunder shall be as if it were principal
debtor and not merely surety, and shall be absolute and unconditional,
irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture,
any failure to enforce the provisions of such Security or such
Indenture, or any waiver, modification or indulgence granted to the
Company with respect thereto, by the holder of such Security or the
Trustee or any other circumstance which may otherwise constitute a
legal or equitable discharge of a surety or guarantor. The Guarantor
hereby waives the benefits of division and discussion, diligence,
presentment, demand of payment, filing of claims with a court in the
event of merger, insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest or notice with
respect to such Security or the indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Guarantee will not be
discharged except by strict and complete performance of the
obligations contained in such Security and this Guarantee. The
Guarantor hereby agrees that, in the event of a default in payment of
principal of, or any premium or interest on, or any Additional Amounts
with respect to, such Security, or default in any sinking fund or
analogous payment referred to therein, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such
Security, on the terms and conditions set forth in the Indenture,
directly against the Guarantor to enforce this Guarantee without first
proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts
paid to such Holder by the Guarantor on account of such Security
pursuant to the provisions of this Guarantee or the Indenture;
provided, however, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such
right of subrogation until the principal of, and any premium and
interest on, and any Additional Amounts required with respect to, all
Securities issued under such Indenture shall have been paid in full.
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No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantee of
the Guarantor, which is absolute and unconditional, of the due and
punctual payment of principal of, any premium and interest on, and any
Additional Amounts required with respect to, the Security upon which
this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of the Security upon which this
Guarantee is endorsed shall have been manually executed by or on
behalf of the Trustee under such Indenture.
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be governed by and
construed in accordance with the laws of the State of New York.
This Guarantee is an unsecured obligation of the Guarantor, and ranks
pari passu with all other unsubordinated indebtedness of the
Guarantor.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal and dated the date on the face
hereof.
Apache Corporation
By:
---------------------------------
Title:
-------------------------------
Attest:
- ------------------------
Each Guarantee shall be dated the date of the Security upon which it
is endorsed. Reference is made to Article Sixteen for further provisions with
respect to the Guarantees.
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Section 203. Form of Trustee's Certificate of
Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
------------------------
Authorized Officer
Section 204. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or
any Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect
the amount, or any increase or decrease in the amount, or changes in the rights
of Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Company Order or Guarantor Order to be delivered pursuant to Section 303 or 304
with respect thereto. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order or
Guarantor Order. If a Company Order or Guarantor Order pursuant to Section 303
or 304 has been, or simultaneously is, delivered, any instructions by the
Company or the Guarantor with respect to a Security in global form shall be in
writing but need not be accompanied by or contained in an Officers' Certificate
and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless
otherwise specified in or pursuant to this Indenture or any Securities, payment
of principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in temporary or permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Guarantor, the Trustee and the Company
and any agent of the Guarantor, the Trustee and the Company shall treat as the
Holder of such principal amount of Outstanding Securities
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represented by a global Security (i) in the case of a global Security in
registered form, the Holder of such global Security in registered form, or (ii)
in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series.
With respect to any Securities to be authenticated and
delivered hereunder, there shall be established in or pursuant to a Board
Resolution, an Officers' Certificate or established in one or more indentures
supplemental hereto,
(a) the title of such Securities and the series in which such
Securities shall be included;
(b) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration or transfer
of, or in exchange for, or in lieu of, other Securities of such series
pursuant to Section 304, 305, 306, 905 or 1107, upon repayment on part
of any Registered Security of such series pursuant to Article Thirteen
or pursuant to the terms of such Securities);
(c) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(d) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form
and (i) whether such Securities are to be issued in temporary or
permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests for
Securities of the same series and of like tenor and of any authorized
form and denomination, and the circumstances under which any such
exchanges may occur, if other than in the manner specified in Section
305, and (iii) the name of the Depository or the U.S. Depository, as
the case may be, with respect to any global Security;
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(e) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(f) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any
clearing organization with respect to the portion of such temporary
Bearer Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(g) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal
of such Securities is payable;
(h) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates,
if any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the
notice, if any, to Holders regarding the determination of interest on
a floating rate Security and the manner of giving such notice, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(i) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are
Registered Securities may be surrendered for registration of transfer
or exchange and notices or demands to or upon the Company or the
Guarantor in respect of such Securities and this Indenture may be
served, the extent to which, or the manner in which, any interest
payment or Additional Amounts on a global Security on an Interest
Payment Date, will be paid and the manner in which any principal of or
premium, if any, on any global Security will be paid;
(j) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(k) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of
$1,000 and any integral multiple thereof, and
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the denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of $5,000;
(l) if other than the principal amount thereof, the portion of
the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
(m) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(n) if the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in
which such Securities are stated to be payable, the date or dates on
which, the period or periods within which, and the other terms and
conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the Currency in which
such Securities are stated to be payable and the Currency in which
such Securities or any of them are to be paid pursuant to such
election, and any deletions from or modifications of or additions to
the terms of this Indenture to provide for or to facilitate the
issuance of Securities denominated or payable, at the election of the
Company or a Holder thereof or otherwise, in a Foreign Currency;
(o) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such amounts shall be determined
and paid or payable;
(p) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company or the Guarantor with
respect to any of such Securities, whether or not such Events of
Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(q) if either or both of Section 402(2) relating to defeasance
or Section 402(3) relating to covenant defeasance shall not be
applicable to the Securities of such series, or any covenants in
addition to those specified in Section 402(3) relating to the
Securities of such series shall be subject to covenant defeasance, and
any deletions from, or modifications or additions to, the provisions
of Article Four in respect of the Securities of such series;
(r) if any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
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(s) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
(t) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities;
(u) if a Change in Control occurs, the Change in Control
Purchase Price; and
(v) any other terms of such Securities and any deletions from
or modifications or additions to this Indenture in respect of such
Securities.
All Securities (and Guarantees endorsed thereon) of any one
series and all Coupons, if any, appertaining to Bearer Securities of such
series shall be substantially identical except as to Currency of payments due
thereunder, denomination and the rate of interest, or method of determining the
rate of interest, if any, Maturity, and the date from which interest, if any,
shall accrue and except as may otherwise be provided by the Company in or
pursuant to the Board Resolution and set forth in the Officers' Certificate or
in any indenture or indentures supplemental hereto pertaining to such series of
Securities. The terms of the Securities of any series may provide, without
limitation, that the Securities shall be authenticated and delivered by the
Trustee on original issue from time to time upon telephonic or written order of
persons designated in the Officers' Certificate or supplemental indenture
(telephonic instructions to be promptly confirmed in writing by such person)
and that such persons are authorized to determine, consistent with such
Officers' Certificate or any applicable supplemental indenture, such terms and
conditions of the Securities of such series as are specified in such Officers'
Certificate or supplemental indenture. All Securities of any one series need
not be issued at the same time and, unless otherwise so provided by the
Company, a series may be reopened for issuances of additional Securities of
such series or to establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolutions of the Company and the Guarantor shall be delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the
terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture,
the principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations
of $1,000 and any integral multiple thereof, and the Bearer Securities
denominated in Dollars shall be
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issuable in the denomination of $5,000. Securities not denominated in Dollars
shall be issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and
Dating.
Securities shall be executed on behalf of the Company by its
Chairman of the Board, one of its Vice Chairmen, its President, its Treasurer,
one of its Assistant Treasurers or one of its Vice Presidents under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. Coupons shall be executed on behalf of the Company by
the Treasurer, one of its Vice Presidents or any Assistant Treasurer of the
Company. The signature of any of these officers on the Securities or any
Coupons appertaining thereto may be manual or facsimile.
Securities, and Guarantees and any Coupons appertaining
thereto, bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of the Company or the Guarantor, as the case may
be, shall bind the Company and the Guarantor, respectively, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities, Guarantees or Coupons or
did not hold such offices at the date of such Securities, Guarantees or
Coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities, together with
any Coupons appertaining thereto, executed by the Company, with Guarantees
endorsed thereon by the Guarantor, to the Trustee for authentication and,
provided that the Board Resolutions and Officers' Certificates or supplemental
indenture or indentures with respect to such Securities referred to in Section
301 and a Company, Order for the authentication and delivery of such
Securities and a Guarantor Order approving the delivery of the Guarantees
endorsed thereon have been delivered to the Trustee, the Trustee in accordance
with the Company Order and subject to the provisions hereof and of such
Securities shall authenticate and deliver such Securities having such
Guarantees. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, and the Guarantees endorsed thereon, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, and Guarantees have been established in conformity
with the provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto,
have been complied with and that such Securities and Coupons, when
completed by appropriate insertions, executed under the Company's
corporate seal and attested by duly authorized officers of the
Company, delivered by duly
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authorized officers of the Company to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
legally valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as
enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and will entitle the Holders thereof
to the benefits of this Indenture, including the Guarantee; such
Opinion of Counsel need express no opinion as to the availability of
equitable remedies;
(c) the Guarantees, when executed under the Guarantor's
corporate seal and attested by duly authorized officers of the
Guarantor, delivered by duly authorized officers of the Guarantor and
issued by the Guarantor in the manner and subject to any condition
specified in such Opinion of Counsel, will constitute legally valid
and binding obligations of the Guarantor, enforceable against the
Guarantor in accordance with its terms, except as enforcement thereof
may be subject to or limited by bankruptcy, insolvency,
reorganization, moratorium, arrangement, fraudulent conveyance,
fraudulent transfer or other similar laws relating to or affecting
creditors' rights generally, and subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and will entitle the Holders to the benefits of this
Indenture; such Opinion of Counsel need express no opinion as to the
availability of equitable remedies;
(d) all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if any,
have been complied with; and
(e) this Indenture has been qualified under the Trust
Indenture Act; and
(2) Officers' Certificates of the Company and the Guarantor
stating that, in each case, to the best knowledge of the Persons executing such
certificate, no event which is, or after notice or lapse of time would become,
an Event of Default with respect to any of the Securities or the Guarantees
shall have occurred and be continuing.
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel and
Officers' Certificates at the time of issuance of each Security, but such
opinion and certificate, with appropriate modifications, shall be delivered at
or before the time of issuance of the first Security of such series. After any
such first delivery, any separate request by the Company that the Trustee
authenticate Securities of such series for original issue will be deemed to be
a certification by the Company and the Guarantor that all conditions precedent
provided for in this Indenture relating to authentication and delivery of such
Securities continue to have been complied with.
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The Trustee shall not be required to authenticate or to cause
an Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
No Security or Guarantee or Coupon appertaining thereto shall
be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose, unless there appears on such Security a certificate of
authentication substantially in the form provided for in Section 202 or 611
executed by or on behalf of the Trustee or by the Authenticating Agent by the
manual signature of one of its authorized officers. Such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Except as
permitted by Section 306 or 307, the Trustee shall not authenticate and deliver
any Bearer Security or related Guarantee unless all Coupons appertaining
thereto then matured have been detached and canceled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute and deliver to the Trustee and, upon Company Order and Guarantor
Order, the Trustee shall authenticate and deliver, in the manner provided in
Section 303, temporary Securities in lieu thereof which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form or, if
authorized in or pursuant to this Indenture, in bearer form with one or more
Coupons or without Coupons and having endorsed thereon Guarantees of the
Guarantor substantially of the tenor of the definitive Guarantees, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities or Guarantees may determine, as
conclusively evidenced by their execution of such Securities or Guarantees, as
the case may be. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form,
which shall be exchanged in accordance with the provisions thereof, if
temporary Securities are issued, the Company shall cause definitive Securities
to be prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities shall
be exchangeable for such definitive Securities with Guarantees of the Guarantor
endorsed thereon upon surrender of such temporary Securities at an Office or
Agency for such Securities, without charge to any Holder thereof. Upon
surrender for cancellation of any one or more temporary Securities (accompanied
by any unmatured Coupons
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appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series and
containing identical terms and provisions, each with a Guarantee of the
Guarantor endorsed thereon; provided, however, that no definitive Bearer
Security, except as provided in or pursuant to this Indenture, shall be
delivered in exchange for a temporary Registered Security; and provided,
further, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
or pursuant to this Indenture. Unless otherwise provided in or pursuant to
this Indenture with respect to a temporary global Security, until so exchanged
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if
any, the Company shall cause to be kept a register (each such register being
herein sometimes referred to as the "Security Register") at an Office or Agency
for such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that
series of Securities. Unless otherwise specified in or pursuant to this
Indenture or the Securities, the Trustee shall be the initial Security
Registrar for each series of Securities. The Company shall have the right to
remove and replace from time to time the Security Registrar for any series of
Securities; provided that no such removal or replacement shall be effective
until a successor Security Registrar with respect to such series of Securities
shall have been appointed by the Company and shall have accepted such
appointment by the Company. In the event that the Trustee shall not be or
shall cease to be Security Registrar with respect to a series of Securities, it
shall have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series of
Securities.
Upon surrender for registration of transfer of any Registered
Security of any series at any Office or Agency for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series denominated as authorized in or pursuant to this Indenture,
of a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions, having endorsed
thereon Guarantees duly authorized by the Guarantor.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations, and
of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at any Office or Agency for such series. Whenever any Registered
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive having endorsed thereon
Guarantees duly authorized by the Guarantor.
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If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series
containing identical terms, denominated as authorized in or pursuant to this
Indenture and in the same aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any Office or Agency for such series, with
all unmatured Coupons and all matured Coupons in default thereto appertaining.
If the Holder of a Bearer Security is unable to produce any such unmatured
Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company, the Guarantor and the Trustee in an amount equal to
the face amount of such missing Coupon or Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company, the Guarantor and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; provided,
however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business
at such Office or Agency on (i) any Regular Record Date and before the opening
of business at such Office or Agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such Office
or Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such
Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Bearer Security, but shall
be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided in or pursuant to this Indenture with respect to
such series.
Whenever any Securities are surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities, having
endorsed thereon Guarantees of the Guarantor which the Holder making the
exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in
or pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
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not appointed by the Company within 90 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for definitive Securities as the result of
an event described in clause (i), (ii) or (iii) of the preceding sentence, then
without unnecessary delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall deliver to the
Trustee definitive Securities in such form and denominations as are required by
or pursuant to this Indenture, and of the same series, containing identical
terms and in aggregate principal amount equal to the principal amount of such
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such global Security shall be
surrendered from time to time by the U.S. Depository or such other Depository
as shall be specified in the Company Order with respect thereto, and in
accordance with instructions given to the Trustee and the U.S. Depository or
such other Depository, as the case may be (which instructions shall be in
writing but need not be contained in or accompanied by an Officers' Certificate
or be accompanied by an Opinion of Counsel), as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or in part, for definitive Securities
as described above without charge. The Trustee shall authenticate and make
available for delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any certification
or other requirements to the issuance of Bearer Securities; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of the same series to be
redeemed and ending on the relevant Redemption Date; and provided, further,
that (unless otherwise provided in or pursuant to this Indenture) no Bearer
Security delivered in exchange for a portion of a global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such global Security shall be returned by
the Trustee to such Depository or the U.S. Depository, as the case may be, or
such other Depository or U.S. Depository referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs
on or after (i) any Regular Record Date for such Security and before the
opening of business at such Office or Agency on the next Interest Payment Date,
or (ii) any Special Record Date for such Security and before the opening of
business at such Office or Agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, interest shall not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but shall be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such global Security
shall be payable in accordance with the provisions of this Indenture.
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All Securities issued upon any registration of transfer or
exchange of Securities and all Guarantees endorsed thereon shall be the valid
obligations of the Company or the Guarantor, as the case may be, evidencing the
same debt and entitling the Holders thereof to the same benefits under this
Indenture as the Securities and all Guarantees endorsed thereon surrendered
upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Company or the Security Registrar for such Security) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar for such Security duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange, or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture,
the Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of business 15
days before the day of the selection for redemption of Securities of like tenor
and the same series under Section 1103 and ending at the close of business on
the day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and
the same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security or a Security with a mutilated
Coupon appertaining to it is surrendered to the Trustee, subject to the
provisions of this Section 306, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
containing identical terms and of like principal amount, having endorsed
thereon the Guarantee of the Guarantor and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company, the Guarantor and to the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security or Coupon, and (ii) such security or indemnity as may be required
by them to save each of them and any agent of either of them
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harmless, then, in the absence of notice to the Company, the Guarantor or the
Trustee that such Security or Coupon has been acquired by a bona fide
purchaser, the Company shall execute and, upon Company Request the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen Coupon appertains with all appurtenant
Coupons not destroyed, lost or stolen, a new Security of the same series
containing identical terms and of like principal amount having endorsed thereon
the Guarantee of the Guarantor and bearing a number not contemporaneously
outstanding, with Coupons corresponding to the Coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306,
in case any mutilated, destroyed, lost or stolen Security or Coupon has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security or Coupon; provided,
however, that principal of, any premium or interest on or any Additional
Amounts with respect to any Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an Office or Agency for such
Securities located outside the United States and, unless otherwise provided in
or pursuant to this Indenture, any interest on Bearer Securities and any
Additional Amounts with respect to such interest shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto, and
the Guarantee of the Guarantor endorsed thereon, issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security, or in exchange for a
Security to which a destroyed, lost or stolen Coupon appertains shall
constitute a separate obligation of the Company and the Guarantor,
respectively, whether or not the destroyed, lost or stolen Security and Coupons
appertaining thereto or the destroyed, lost or stolen Coupon shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of such
series and any Coupons and related Guarantees duly issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
shall be exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or Coupons.
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Section 307. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved.
Unless otherwise provided in or pursuant to this Indenture,
any interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, and are punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered as of the close
of business on the Regular Record Date for such interest. Unless otherwise
provided in or pursuant to this Indenture, in case a Bearer Security is
surrendered in exchange for a Registered Security after the close of business
at an Office or Agency for such Security on any Regular Record Date therefor
and before the opening of business at such Office or Agency on the next
succeeding Interest Payment Date therefor, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date and
interest shall not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture,
any interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, but shall not be punctually paid or duly
provided for, on any Interest Payment Date for such Registered Security (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
thereof on the relevant Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest may be paid by the Company or the
Guarantor, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company or the Guarantor may elect to make payment of any
Defaulted Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company or the Guarantor shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
such Registered Security and the date of the proposed payment, and at the same
time the Company or the Guarantor, as the case may be, shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when so deposited to be held in trust for the benefit of the Person
entitled to such Defaulted Interest as in this Clause provided. Thereupon, the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company or the Guarantor, as the case may be, of such
Special Record Date and, in the name and at the expense of the Company or the
Guarantor, as the case may be, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security (or a
Predecessor Security thereof) at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The Trustee
may, in its discretion,
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in the name and at the expense of the Company or the Guarantor cause a similar
notice to be published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Person in whose name such Registered
Security (or a Predecessor Security thereof) shall be registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security after
the close of business at such Office or Agency on any Special Record Date and
before the opening of business at such Office or Agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Defaulted Interest and
Defaulted Interest shall not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but shall be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
(2) The Company or the Guarantor may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company or the Guarantor to the Trustee of the proposed payment pursuant to
this Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or
the Securities of any particular series, at the option of the Company, interest
on Registered Securities that bear interest may be paid by mailing a check to
the address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Guarantor, the Trustee and any agent
of the Company, the Guarantor or the Trustee may treat the Person in whose name
such Registered Security is registered in the Security Register as the owner of
such Registered Security for the purpose of receiving payment of principal of,
any premium and (subject to Sections 305 and 307) interest on and any
Additional Amounts with respect to such Registered Security and for all other
purposes whatsoever, whether or not any payment with respect
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to such Registered Security shall be overdue, and neither the Company, the
Guarantor nor the Trustee or any agent of the Company, the Guarantor or the
Trustee shall be affected by notice to the contrary.
The Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the bearer of any Bearer
Security or the bearer of any Coupon as the absolute owner of such Security or
Coupon for the purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not any payment with respect to
such Security or Coupon shall be overdue, and neither the Company, the
Guarantor nor the Trustee or any agent of the Company, the Guarantor or the
Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security
held on its behalf by a Depository shall have any rights under this Indenture
with respect to such global Security, and such Depository may be treated by the
Company, the Guarantor, the Trustee, and any agent of the Company, the
Guarantor or the Trustee as the owner of such global Security for all purposes
whatsoever. None of the Company, the Guarantor, the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of a global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such
Securities and Coupons, as well as Securities and Coupons surrendered directly
to the Trustee for any such purpose, shall be canceled promptly by the Trustee.
The Company or the Guarantor may at any time deliver to the Trustee for
cancellation any Securities or coupons previously authenticated and delivered
hereunder which the Company or the Guarantor may have acquired in any manner
whatsoever, and all Securities or Coupons so delivered shall be canceled
promptly by the Trustee. No Securities or Coupons shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by or pursuant to this Indenture. All canceled
Securities and Coupons held by the Trustee shall be destroyed by the Trustee,
unless by a Company Order or Guarantor Order, the Company or the Guarantor
directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture
or in any Security, interest on the Securities shall be computed on the basis
of a 360-day year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order or the
Guarantor by a Guarantor Order, this Indenture shall cease to be of further
effect with respect to any series of Securities specified in such Company Order
or Guarantor Order and any Coupons appertaining thereto, and the Trustee, on
receipt of a Company Order or Guarantor Order, at the expense of the Company
and the Guarantor, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining thereto
(other than (i) Coupons appertaining to Bearer Securities of such
series surrendered in exchange for Registered Securities of such
series and maturing after such exchange whose surrender is not
required or has been waived as provided in Section 305, (ii)
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306, (iii) Coupons appertaining to Securities of such series called
for redemption and maturing after the relevant Redemption Date whose
surrender has been waived as provided in Section 1107, and (iv)
Securities and Coupons of such series for whose payment money in the
applicable Currency has theretofore been deposited in trust or
segregated and held in trust by the Company or the Guarantor and
thereafter repaid to the Company or the Guarantor or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series and, in the
case of (i) or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose, money in the
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Currency in which such Securities are payable in an amount sufficient
to pay and discharge the entire indebtedness on such Securities and
any Coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation, including the principal of, any premium and
interest on, and any Additional Amounts with respect to such
Securities and any Coupons appertaining thereto, to the date of such
deposit (in the case of Securities which have become due and payable)
or to the Maturity thereof, as the case may be;
(2) the Company or the Guarantor, as the case may be, has
paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Outstanding Securities of such series and
any Coupons appertaining thereto; and
(3) the Company or the Guarantor, as the case may be, has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of such series as to which it is Trustee and if the other
conditions thereto are met.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to any series of Securities, the obligations of the
Company and the Guarantor to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the obligations of the Trustee, the Guarantor and the Company
with respect to the Securities of such series under Sections 305, 306, 403,
1002 and 1003, with respect to the payment of Additional Amounts, if any, with
respect to such Securities as contemplated by Section 1004 (but only to the
extent that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to
Section 401(1)(b)), shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of
(i) defeasance of the Securities of or within a series under clause (2) of this
Section 402, or (ii) covenant defeasance of the Securities of or within a
series under clause (3) of this Section 402 shall not be applicable with
respect to the Securities of such series, then such provisions, together with
the other provisions of this Section 402 (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities), shall
be applicable to such Securities and any Coupons appertaining thereto, and the
Company may at its option by Board Resolution or Officers' Certificate, at any
time, with respect to such Securities and any Coupons appertaining thereto,
elect to have Section 402(2) or Section 402(3) be applied to such Outstanding
Securities and any Coupons appertaining thereto upon compliance with the
conditions set forth below in this Section 402.
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(2) Upon the Company's exercise of the above option
applicable to this Section 402(2) with respect to any Securities of or within a
series, the Company and the Guarantor shall be deemed to have been discharged
from their respective obligations with respect to such Outstanding Securities
and any Coupons appertaining thereto, and with respect to the Guarantees
endorsed thereon, on the date the conditions set forth in clause (4) of this
Section 402 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company and the Guarantor shall be deemed to have
paid and discharged the entire Indebtedness represented by such Outstanding
Securities and any Coupons appertaining thereto, and such corresponding
Guarantees, which shall thereafter be deemed to be "Outstanding" only for the
purposes of clause (5) of this Section 402 and the other Sections of this
Indenture referred to in clauses (i) and (ii) below, and to have satisfied all
of its other obligations under such Securities and any Coupons appertaining
thereto and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities and any
Guarantees and Coupons appertaining thereto to receive, solely from the trust
fund described in clause (4) of this Section 402 and as more fully set forth in
such Section, payments in respect of the principal of (and premium, if any) and
interest, if any, on, and Additional Amounts, if any, with respect to, such
Securities and any Coupons appertaining thereto when such payments are due,
(ii) the obligations of the Company and the Trustee with respect to such
Securities under Sections 305, 306, 1002 and 1003, with respect to the payment
of Additional Amounts, if any, on such Securities as contemplated by Section
1004 (but only to the extent that the Additional Amounts payable with respect
to such Securities exceed the amount deposited in respect of such Additional
Amounts pursuant to Section 401(4)(a) below), and any obligations of the
Guarantor relating to a surviving obligation of the Company, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (iv) this
Section 402. The Company may exercise its option under this Section 402(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 402 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Company's exercise of the above option
applicable to this Section 402(3) with respect to any Securities of or within a
series, the Company and the Guarantor shall be released from their respective
obligations under Sections 1005 and 1006, and, to the extent specified pursuant
to Section 301, any other covenant applicable to such Securities or the
Guarantees endorsed thereon, with respect to such Outstanding Securities and
any Coupons appertaining thereto on and after the date the conditions set forth
in clause (4) of this Section 402 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and
any Coupons appertaining thereto and the Guarantees endorsed thereon, the
Company and the Guarantor may omit to comply with, and shall have no liability
in respect of, any term, condition or limitation set forth in any such Section
or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such
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Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(3) or 501(4) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and Coupons appertaining thereto and the Guarantees endorsed thereon
shall be unaffected thereby.
(4) The following shall be the conditions to application
of clause (2) or (3) of this Section 402 to any Outstanding Securities of or
within a series and any Coupons appertaining thereto and the Guarantees
endorsed thereon:
(a) The Company or the Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Section 402 applicable to it) as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any Coupons appertaining
thereto,
(1) an amount in Dollars or in such Foreign Currency
in which such Securities and any Coupons appertaining thereto
are then specified as payable at Stated Maturity, or
(2) Government Obligations applicable to such
Securities and Coupons appertaining thereto (determined on the
basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any Coupons
appertaining thereto, money in an amount, or
(3) a combination thereof,
in any case, in an amount, sufficient, without consideration
of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, the principal of (and premium, if any)
and interest, if any, on such Outstanding Securities and any
Coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest on the day
on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any
Coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or
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instrument to which the Company or the Guarantor is a party or by
which either of them is bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
such Securities and any Coupons appertaining thereto shall have
occurred and be continuing on the date of such deposit and, with
respect to defeasance only, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of
such period).
(d) In the case of an election under clause (2) of this
Section 402, the Company or the Guarantor shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company or the
Guarantor has received from the Internal Revenue Service a letter
ruling, or there has been published by the Internal Revenue Service a
Revenue Ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any
Coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 402, the Company and the Guarantor shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such
Outstanding Securities and any Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(f) The Company and the Guarantor shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance or covenant
defeasance under clause (2) or (3) of this Section 402 (as the case
may be) have been complied with.
(g) Notwithstanding any other provisions of this Section
402(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company or the Guarantor in
connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of
Section 1003, all money and Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes
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of this Section 402(5) and Section 403, the "Trustee") pursuant to clause (4)
of Section 402 in respect of any Outstanding Securities of any series and any
Coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any Coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any Coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest and Additional Amounts, if any,
but such money need not be segregated from other funds except to the extent
required by law.
Unless otherwise specified in or pursuant to this Indenture or
any Security, if, after a deposit referred to in Section 402(4)(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto and the
Guarantees endorsed thereon shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and premium,
if any), and interest, if any, on, and Additional Amounts, if any, with respect
to, such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on (x) in the case of payments made pursuant
to clause (a) above, the applicable market exchange rate for such Currency in
effect on the second Business Day prior to each payment date, or (y) with
respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company and the Guarantor shall pay and indemnify the
Trustee against any tax, fee or other charge, imposed on or assessed against
the Government Obligations deposited pursuant to this Section 402 or the
principal or interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request, or the Guarantor, as the case may be, upon Guarantor's Request, any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in clause (4) of this Section 402 which, in the opinion
of a nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Section 402.
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Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations deposited with the Trustee pursuant
to Section 401 or 402 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the Coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company or
the Guarantor acting as its own Paying Agent) as the Trustee may determine, to
the Persons entitled thereto, of the principal, premium, interest and
Additional Amounts for whose payment such money has or Government Obligations
have been deposited with or received by the Trustee; but such money and
Government Obligations need not be segregated from other funds except to the
extent required by law.
Section 404. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article with respect to any Securities by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to this Article shall be revived and reinstated
as though no deposit has occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to this Article with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any
such Security following reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body), unless such event is specifically deleted or modified in or
pursuant to the supplemental indenture, Board Resolution or Officers'
Certificate establishing the terms of such series pursuant to this Indenture:
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(1) failure to pay any interest on or any Additional
Amounts payable in respect of any Security of such series when such interest
becomes or such Additional Amounts become due and payable, and continuance of
such default for a period of 30 days; or
(2) failure to pay the principal of or any premium on any
Security of such series when it becomes due and payable at either its Maturity
or, if applicable, at 12:00 noon on the Business Day following the Change in
Control Purchase Date; or
(3) failure to perform or the breach, of any covenant or
warranty of the Company or the Guarantor in this Indenture or the Securities
(other than a covenant or warranty a default in the performance or the breach
of which is elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than such series), and continuance of such failure or breach
for a period of 60 days after there has been given, by registered or certified
mail, to the Company and the Guarantor by the Trustee or to the Company, the
Guarantor and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of such series, a written notice specifying such
failure or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(4) if any event of default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which there may
be secured or evidenced, any Indebtedness (other than Indebtedness constituting
Limited Recourse Indebtedness) of the Company, the Guarantor or any other
Subsidiary, whether such Indebtedness now exists or shall hereafter be created,
shall happen and shall result in Indebtedness of the Company, the Guarantor or
any other Subsidiary in excess of $25,000,000 aggregate principal amount
becoming or being declared due and payable prior to the date on which such
Indebtedness would otherwise become due and payable, and such acceleration
shall not be rescinded or annulled, or such Indebtedness shall not have been
discharged, within a period of 30 days after there shall have been given, by
registered or certified mail, to the Company and the Guarantor by the Trustee
or to the Trustee, the Guarantor and the Company by the Holders of at least 25%
in principal amount of the Outstanding Securities of such series, a written
notice specifying such event of default and requiring the Company or the
Guarantor to cause such acceleration to be rescinded or annulled or to cause
such Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; or
(5) the Company or any Subsidiary shall fail within 60
days to pay, bond or otherwise discharge any judgment, court order or uninsured
monetary damage award in excess of $25,000,000 aggregate principal amount,
which is not stayed on appeal or is not otherwise being appropriately contested
in good faith; or
(6) the entry by a court having competent jurisdiction
of:
(a) a decree or order for relief in respect of the
Company, the Guarantor or any other Subsidiary in an involuntary
proceeding under any applicable bankruptcy, insolvency,
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reorganization or other similar law and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company, the
Guarantor or any other Subsidiary to be insolvent, or approving a
petition seeking reorganization, arrangement, adjustment or
composition of the Company, the Guarantor or any other Subsidiary and
such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other similar
official of the Company, the Guarantor or any other Subsidiary or of
any substantial part of the property of the Company, the Guarantor or
any other Subsidiary, as the case may be, or ordering the winding up
or liquidation of the affairs of the Company, the Guarantor or any
other Subsidiary; or
(7) the commencement by the Company, the Guarantor or any
other Subsidiary of a voluntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or of a voluntary proceeding
seeking to be adjudicated insolvent or the consent by the Company, the
Guarantor or any other Subsidiary to the entry of a decree or order for relief
in an involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any insolvency
proceedings against it, or the filing by the Company, the Guarantor or any
other Subsidiary of a petition or answer or consent seeking reorganization or
relief under any applicable law, or the consent by the Company, the Guarantor
or any other Subsidiary to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee or
similar official of the Company, the Guarantor or any other Subsidiary or any
substantial part of the property of the Company, the Guarantor or any other
Subsidiary or the making by the Company, the Guarantor or any other Subsidiary
of an assignment for the benefit of creditors, or the taking of corporate
action by the Company, the Guarantor or any other Subsidiary in furtherance of
any such action; or
(8) any other Event of Default provided in or
pursuant to this Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of any
series at the time Outstanding (other than an Event of Default specified in
clause (6) or (7) of Section 501) occurs and is continuing, then the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal of all the Securities of
such series, or such lesser amount as may be provided for in the Securities of
such series, to be due and payable immediately, by a notice in writing to the
Company and the Guarantor (and to the Trustee if given by the Holders), and
upon any such declaration such principal or such lesser amount shall become
immediately due and payable.
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If an Event of Default specified in clause (6) or (7) of
Section 501 occurs, all unpaid principal of and accrued interest on the
Outstanding Securities of that series (or such lesser amount as may be provided
for in the Securities of such series) shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder of any Security of that series.
At any time after Securities of any series have been
accelerated and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Trustee, the Guarantor and
the Company, may rescind and annul such declaration and its consequences if
(1) the Company or Guarantor has paid or deposited with
the Trustee a sum of money sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series and
any Coupon appertaining thereto,
(b) the principal of and any premium on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments of
any interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and all other amounts due the
Trustee under Section 606; and
(2) all Events of Default with respect to Securities of
such series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of such
series which shall have become due solely by such declaration of acceleration,
shall have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants and the Guarantor covenants, in each
case, that if
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(1) there is a failure to pay any installment of interest
on or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have become
due and payable and such default continues for a period of 30 days, or
(2) there is a failure to pay the principal of or any
premium on any Security at its Maturity, the Company or the Guarantor shall,
upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of such Securities and any Coupons appertaining thereto, the whole amount of
money then due and payable with respect to such Securities and any Coupons
appertaining thereto, with interest upon the overdue principal, any premium
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest and Additional Amounts at the rate or
rates borne by or provided for in such Securities, and, in addition thereto,
such further amount of money as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
If the Company or the Guarantor fails to pay the money it is
required to pay the Trustee pursuant to the preceding paragraph forthwith upon
the demand of the Trustee, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
money so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company or the Guarantor or any
other obligor upon such Securities and any Coupons appertaining thereto or the
Guarantees endorsed thereon and collect the monies adjudged or decreed to be
payable in the manner provided by law out of the property of the Company, the
Guarantor or any other obligor upon such Securities and any Coupons
appertaining thereto or the Guarantees endorsed thereon, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any Coupons appertaining thereto by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or such Securities or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company, the Guarantor or any
other obligor upon the Securities or the Guarantees endorsed thereon or the
property of the Company, the Guarantor or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company or the Guarantor for the payment of any overdue principal, premium,
interest
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or Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or
such lesser amount as may be provided for in the Securities of such
series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of the Securities and any Coupons
appertaining thereto and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents or counsel) and
of the Holders of Securities or any Coupons allowed in such judicial
proceeding, and
(2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or any Coupon any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any Coupon in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors'
committee or other similar committee.
Section 505. Trustee May Enforce Claims without Possession
of Securities, Guarantees or Coupons.
All rights of action and claims under this Indenture or any of
the Securities, the Guarantees or any Coupons may be prosecuted and enforced by
the Trustee without the possession of any of the Securities, Guarantees or
Coupons or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery or judgment, after provision for
the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, shall be for the ratable
benefit of each and every Holder of a Security or Coupon in respect of which
such judgment has been recovered.
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Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
or any premium, interest or Additional Amounts, upon presentation of the
Securities or Coupons, or both, as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and any Coupons for principal and any premium,
interest and Additional Amounts in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and
payable on such Securities and Coupons for principal and any premium,
interest and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons
appertaining thereto shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, the Guarantees, the Securities of
any series or any Coupons appertaining thereto, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
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(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security or Guarantee to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and
Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 305 and 307) interest on, and any Additional Amounts with respect
to such Security or payment of such Coupon or payment pursuant to the Guarantee
endorsed on such Security, as the case may be, on the respective Stated
Maturity or Maturities therefor specified in such Security or Coupon (or, in
the case of redemption, on the Redemption Date or, in the case of repayment at
the option of such Holder if provided in or pursuant to this Indenture, on the
date such repayment is due, or in the case of a Change in Control, or as to any
Change in Control Purchase Notice given timely, on the Change in Control
Purchase Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Guarantor, the Trustee and each such Holder shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and each such Holder shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Security or a Coupon
is intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall be cumulative and in addition to
every other right and remedy given
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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, to the extent permitted by law, prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or Coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to any Holder of a Security or a
Coupon may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
Subject to Section 601(e), the Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series and any Coupons
appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the
rights of the other Holders of Securities of such series not joining
in such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past or prospective default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security
of such series or any Coupons appertaining thereto, or
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(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
Each of the Company and the Guarantor covenants that (to the
extent that it may lawfully do so) it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
each of the Company and the Guarantor expressly waives (to the extent that it
may lawfully do so) all benefit or advantage of any such law and covenants that
it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
Section 515. Undertaking for Costs
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken or omitted by it as Trustee, the filing by any party litigant
in such suit of any undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest, if any, on or Additional Amounts, if any, with respect to any
Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date, in
the case of repayment, on or after the date for repayment and, in the case of
Change of Control, on or after the date for payment of the Change of Control
Purchase Price).
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ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company or the
Guarantor mentioned herein shall be sufficiently evidenced by a
Company Request or a Company Order or Guarantor Request or Guarantor
Order, as the case may be (in each case, other than delivery of any
Security, together with any Coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which
shall be sufficiently evidenced as provided therein), and any
resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution of the Company or the Guarantor, as the case may
be;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon a
Company's Officers' Certificate or, if such matter pertaining to the
Guarantor, a Guarantor's Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by or pursuant to this
Indenture at the request or direction of any of the Holders of
Securities of any series or any Coupons appertaining thereto pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, coupon or other paper or
document, but
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the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours
and upon reasonable notice, the books, records and premises of the
Company and the Guarantor, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of
any default (as defined in Section 602) or Event of Default with
respect to the Securities of any series for which it is acting as
Trustee unless either (1) a Responsible Officer 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 such Securities or by any
holder of such Securities; and
(i) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit by
mail to all Holders of Securities of such series entitled to receive reports
pursuant to Section 703(3), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any), or interest, if any, on, or Additional Amounts with
respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
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Section 603. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, and in any Coupons shall be taken
as the statements of the Company or the Guarantor, as the case may be, and
neither the Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or the Coupons appertaining
thereto or the Guarantees, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other Person that may be an agent of the Trustee, the
Company or the Guarantor, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Company and the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held
by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law and shall be held uninvested. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company or the Guarantor, as the
case may be.
Section 606. Compensation and Reimbursement.
Each of the Company and the Guarantor agrees:
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the
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Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
(c) to indemnify the Trustee and its agents for, and to
hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities of any series upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of,
and premium or interest on or any Additional Amounts with respect to particular
Securities or any Coupons appertaining thereto.
Any compensation or expense incurred by the Trustee after a
default specified by Section 501 is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law.
"Trustee" for purposes of this Section 606 shall include any predecessor
Trustee but the negligence or bad faith of any Trustee shall not affect the
rights of any other Trustee under this Section 606.
The Company's obligations under this Section 606 and any lien
hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Four of this
Indenture and the termination of this Indenture.
Section 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a
Corporation, organized and doing business under the laws of the United States
of America, any state thereof or the District of Columbia, eligible under
Section 310(a)(1) of the Trust Indenture Act to act as trustee under an
indenture qualified under the Trust Indenture Act and that has a combined
capital and surplus (computed in accordance with Section 310(a)(2) of the Trust
Indenture Act) of at least $50,000,000 subject to supervision or examination by
Federal or state authority. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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Section 608. Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee pursuant
to Section 609.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company and the Guarantor. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series, delivered to the
Trustee and the Company and the Guarantor.
(d) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Company, the Guarantor or any Holder of a Security of such series
who has been a bona fide Holder of a Security of such series for at
least six months, or
(b) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by the
Company, the Guarantor or any such Holder, or
(c) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
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particular series) and shall comply with the applicable requirements of Section
609. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 609, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in the manner
required by Section 609, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Securities of
such series are issued as Bearer Securities, by publishing notice of such event
once in an Authorized Newspaper in each Place of Payment located outside the
United States. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 609. Acceptance of Appointment by Successor.
(a) Upon the appointment hereunder of any successor
Trustee with respect to all Securities, such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company, the Guarantor and the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties hereunder of the retiring
Trustee; but, on the request of the Company, the Guarantor or such successor
Trustee, such retiring Trustee, upon payment of its charges, shall execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and, subject to Section 1003, shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) Upon the appointment hereunder of any successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the Guarantor, the retiring Trustee and such successor Trustee shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and
to vest in, such successor Trustee all the
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rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and, upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee
shall have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Company, the Guarantor, or such successor Trustee, such retiring
Trustee, upon payment of its charges with respect to the Securities of that or
those series to which the appointment of such successor relates and subject to
Section 1003 shall duly assign, transfer and deliver to such successor Trustee,
to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, subject to its claim, if any, provided for in Section 606.
(c) Upon request of any Person appointed hereunder as a
successor Trustee, the Company and the Guarantor shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in paragraph
(1) or (2) of this Section, as the case may be.
(d) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor Person
shall be qualified and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or
Succession to Business.
Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any Corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, without the
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execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated but not
delivered by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents
acceptable to the Company with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original issue, exchange,
registration of transfer, partial redemption or partial repayment or pursuant
to Section 306, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company
and the Guarantor and, except as provided in or pursuant to this Indenture,
shall at all times be a corporation that would be permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act, is authorized under applicable law and by its charter to act as
an Authenticating Agent and has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to all or
substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, provided such Corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee, the Company and the Guarantor. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent, the Company and the
Guarantor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, the Trustee may
appoint a successor Authenticating Agent which shall be acceptable to
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the Company and shall (i) mail written notice of such appointment by
first-class mail, postage prepaid, to all Holders of Registered Securities, if
any, of the series with respect to which such Authenticating Agent shall serve,
as their names and addresses appear in the Security Register, and (ii) if
Securities of the series are issued as Bearer Securities, publish notice of
such appointment at least once in an Authorized Newspaper in the place where
such successor Authenticating Agent has its principal office if such office is
located outside the United States. Any successor Authenticating Agent, upon
acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay each Authenticating Agent from time
to time reasonable compensation for its services under this Section. If the
Trustee makes such payments, it shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be
applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or
more series of Securities pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By
---------------------------
As Authenticating Agent
By
---------------------------
Authorized Officer
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Company wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not be accompanied by or contained in an Officers' Certificate by the Company),
shall appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 701. Company and Guarantor to Furnish Trustee
Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act,
the Company and the Guarantor shall furnish or cause to be furnished to the
Trustee
(a) semi-annually with respect to Securities of each
series not later than March 15 and September 15 of the year or upon
such other dates as are set forth in or pursuant to the Board
Resolution, Officers' Certificate or indenture supplemental hereto
authorizing such series, a list, in each case in such form as the
Trustee may reasonably require, of the names and addresses of Holders
as of the applicable date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company or the
Guarantor of any such request, a list of similar form and content as
of a date not more than 15 days prior to the time such list is
furnished,
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to
Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Trustee, the Guarantor and the Company that
neither the Company, the Trustee nor the Guarantor, nor any agent of any of
them or any Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with Section 312(c) of the Trust Indenture Act,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
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Section 703. Reports by Trustee.
(a) Within 60 days after September 15 of each year
commencing with the first September 15 following the first issuance of
Securities pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the
Trust Indenture Act, a brief report dated as of such September 15 with respect
to any of the events specified in said Section 313(a) which may have occurred
since the later of the immediately preceding September 15 and the date of this
Indenture.
(b) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted
in the manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
Section 704. Reports by Company and Guarantor.
The Company, pursuant to Section 314(a) of the Trust Indenture
Act, shall:
(a) file with the Trustee, within 15 days after the
Company and the Guarantor are required to file the same with the Commission,
copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the Company and
the Guarantor may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company
or the Guarantor is not required to file information, documents or reports
pursuant to either of said Sections, then they shall file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from time
to time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Company and the Guarantor, with the conditions and covenants
of this Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Company and the Guarantor pursuant to paragraphs
(1) and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Guarantor May Consolidate, Etc., Only on
Certain Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Guarantor with or
into any other Person or Persons (whether or not affiliated with the
Guarantor), or successive consolidations or mergers in which the Guarantor or
its successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of the property of the Guarantor as an entirety
or substantially as an entirety, to any other Person (whether or not affiliated
with the Guarantor); provided, however, that:
(a) in case the Guarantor shall consolidate with or merge
into another Person or convey, transfer or lease its properties and assets as
an entirety or substantially as an entirety to any Person, the entity formed by
such consolidation or into which the Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets
of the Guarantor as an entirety or substantially as an entirety shall be a
Corporation organized and validly existing under the laws of the United States
of America, any state thereof or the District of Columbia and shall expressly
assume, by an indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person and delivered to
the Trustee, in form satisfactory to the Trustee, the performance of every
obligation in this Indenture and the Guarantees on the part of the Guarantor to
be performed or observed;
(b) immediately after giving effect to such transaction, no
Event of Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing, including
any default pursuant to the Holder's Change of Control Purchase Option set
forth in Article Fifteen; and
(c) either the Guarantor or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
Section 802. Subsidiary Issuers May Consolidate, etc., Only
on Certain Terms.
(a) Each Subsidiary Issuer shall not consolidate with or merge into
any other Person, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, unless:
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(1) any Person formed by such consolidation or into which the
applicable Subsidiary Issuer is merged or to whom such Subsidiary Issuer has
conveyed, transferred or leased its properties and assets as an entirety or
substantially as an entirety (a "Successor") is a Person organized and validly
existing under the laws of the jurisdiction of organization of such Person, and
expressly assumes by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest on and any Additional
Amounts with respect to all the Securities of such Subsidiary Issuer and the
performance or observance of every covenant of this Indenture on the part of
such Subsidiary Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing;
(3) any such Person shall expressly agree, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, (i) to immediately indemnify (pursuant to the
indemnification procedure described in Section 805) the Holder of each Security
against (A) any tax, assessment or governmental charge imposed on such Holder
or required to be withheld or deducted from any payment to such Holder
(including any governmental charge or withholding attributable to such Person's
indemnifying such Holder) as a consequence of such consolidation, merger,
conveyance, transfer or lease, and (B) any other tax costs or other tax
expenses of the act of such consolidation, merger, conveyance, transfer or
lease (except that if the Company or any such Person delivers by the date of
any such transaction an opinion of an independent counsel or a tax consultant
of recognized standing that the Holders will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such transaction, a Holder
will have such rights to indemnification only if and when gain for U.S. federal
income tax purposes is actually imposed on such Holders) and (ii) that all
payments pursuant to the Securities in respect of the principal of and any
premium and interest on such Securities, as the case may be, shall be made
without withholding or deduction for, or on account of, any present or future
taxes, duties, assessments or governmental charges of whatever nature imposed
or levied by or on behalf of the jurisdiction of organization of such Person or
any political subdivision or taxing authority thereof or therein, unless such
taxes, duties, assessments or governmental charges are required by such
jurisdiction or any such subdivision or authority to be withheld or deducted,
in which case such Person will pay by way of additional interest such
additional amounts of or in respect of, principal and any premium and interest
("Successor Additional Amounts") as will result (after deduction of such taxes,
duties, assessments or governmental charges and any additional taxes, duties,
assessments or governmental charges payable in respect of such) in the payment
to each Holder of a Security of the amounts which would have been payable
pursuant to the Securities had no such withholding or deduction been required,
except that no Successor Additional Amounts shall be so payable for or on
account of:
(A) any tax, duty, levy, assessment or other
governmental charge which would not have been imposed but for the fact
that such Holder: (i) was a resident, domiciliary or national of, or
engaged in business or maintained a
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permanent establishment or was physically present in, the jurisdiction
of organization of such Successor or any of its territories or any
political subdivision thereof or otherwise had some connection with
such jurisdiction other than the mere ownership of, or receipt of
payment under, such Security; (ii) presented (if presentation is
required) such Security for payment in such jurisdiction or any of its
territories or any political subdivision thereof, unless such Security
could not have been presented for payment elsewhere; or (iii)
presented (if presentation is required) such Security more than thirty
(30) days after the date on which the payment in respect of such
Security first became due and payable or provided for, whichever is
later, except to the extent that the Holder would have been entitled
to such Successor Additional Amounts if it had presented such Security
for payment on any day within such period of thirty (30) days;
(B) any estate, inheritance, gift, sale,
transfer, personal property or similar tax, assessment or other
governmental charge;
(C) any tax, assessment or other governmental
charge which is payable otherwise than by withholding or deduction
from payments of (or in respect of) principal of or any premium or
interest on, such Securities;
(D) any tax, assessment or other governmental
charge that is imposed or withheld by reason of the failure to comply
by the Holder or the beneficial owner of the Security with a request
of such Subsidiary Issuer or the Successor addressed to the Holder (i)
to provide information concerning the nationality, residence or
identity of the Holder or such beneficial owner or (ii) to make any
declaration or other similar claim or satisfy any information or
reporting requirement, which, in the case of (i) or (ii), is required
or imposed by statute, treaty, regulation or administrative practice
of the taxing jurisdiction as a precondition or exemption from all or
part of such tax, assessment or other governmental charge; or
(E) any combination of items (A), (B), (C)
and (D);
nor shall Successor Additional Amounts be paid with respect to any payment of
the principal of or any premium or interest on any such Security to any Holder
who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent such payment would be required by the laws of the
jurisdiction of organization of such Person (or any political subdivision or
taxing authority thereof or therein) to be included in the income for tax
purposes of a beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner who would not have been entitled to
such Successor Additional Amounts had it been the Holder of the Security; and
(4) such Subsidiary Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and,
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if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
(b) A Subsidiary Issuer may assign its obligations under any
series of Securities to any other Subsidiary (the "Subsidiary Assignee") and
such Subsidiary Assignee shall be treated as the Successor to such Subsidiary
Issuer with respect to such series of Securities, provided that the conditions
set forth in Section 802(a) that would apply to the merger of such Subsidiary
Issuer into such Subsidiary Assignee are satisfied.
Section 803. Successor Person Substituted for Company
or Guarantor.
Upon any consolidation by the Company or the Guarantor with or
merger of the Company or the Guarantor into any other Person or any conveyance,
transfer or lease of the properties and assets of the Company or the Guarantor,
as the case may be, as an entirety or substantially as an entirety to any
Person in accordance with Sections 801 or 802, the successor Person formed by
such consolidation or into which the Company or the Guarantor, as the case may
be, is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or the Guarantor, as the case may be, under this Indenture with the
same effect as if such successor Person had been named as the Company or the
Guarantor, as the case may be, herein; and thereafter, except in the case of a
lease, the predecessor Person shall be released from all obligations and
covenants under this Indenture, the Securities, the Guarantees and the Coupons.
Section 804. Assumption by the Guarantor of the Company's
Obligations
(a) The Guarantor may, at its option, assume the obligations of the
Company as obligor under any series of Securities and this Indenture; provided
that:
(i) the Guarantor expressly assumes in an assumption
agreement or supplemental indenture hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on such Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed (including any obligation to pay any
Additional Amounts);
(ii) immediately after giving effect to such assumption, no
Event of Default and no event, which after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and
(iii) the Guarantor shall expressly agree in an assumption
agreement or supplemental indenture hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, to
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immediately indemnify (pursuant to the indemnification procedure described in
Section 805) the Holder of each Security against (i) any tax, assessment or
governmental charge imposed on such Holder or required to be withheld or
deducted from any payment to such Holder (including any governmental charge or
withholding tax attributable to the Guarantor indemnifying such Holder) as a
consequence of such assumption and (ii) any costs or expenses of such
assumption (except that if the Guarantor delivers to the Trustee an opinion of
an independent counsel or a tax consultant of recognized standing that the
Holders will not recognize income, gain or loss for U.S. federal income tax
purposes as a result of such assumption by the date of such assumption, a
Holder will have indemnification rights pursuant to the indemnification
procedure described in Section 805 only if and when gain for U.S. federal
income tax purposes is actually imposed on such Holder); and
(iv) the Guarantor shall have delivered to the Trustee an
Officers' Certificate stating that such assumption and such assumption
agreement comply with this Article and that all conditions precedent herein
provided for relating to such assumption have been complied with.
(b) Upon any assumption pursuant to Section 804(a), the Guarantor
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under such Securities and this Indenture with the same
effect as if the Guarantor had been named as the Company herein, and the
Company shall be released from its liability as obligor upon the Securities and
any Coupons and under this Indenture.
Section 805. Indemnification Procedure
(a) If a transaction described above under Sections 801, 802 or 804
(an "Indemnifiable Transaction") should constitute a taxable event for U.S.
federal income tax purposes, the Guarantor or any other Person that assumes the
obligations of the Guarantor or the Company pursuant to such Sections, as the
case may be, shall indemnify a Holder of a Security against any tax, assessment
or governmental charge imposed on such Holder or required to be withheld or
deducted from any payment to such Holder (including any governmental charge or
withholding attributable to an indemnification payment made by or on behalf of
the Guarantor or any such Person) and any other tax costs or other tax expenses
attributable to such Indemnifiable Transaction, and the Guarantor or any such
Person, as the case may be, shall comply with the following indemnification
procedures:
(1) Unless the Guarantor or any such Person, as the case may
be, delivers to the Trustee by the date of an Indemnifiable Transaction an
opinion of an independent counsel or a tax consultant of recognized standing to
the effect that such Indemnifiable Transaction will not be a taxable event for
U.S. federal income tax purposes, the Guarantor or any such Person, as the case
may be, shall send to each Holder on or prior to the date of such Indemnifiable
Transaction (i) notification explaining the U.S. federal income tax
consequences to each such Holder of such Indemnifiable Transaction and (ii) an
indemnification claim form requesting (A)information concerning each such
Holder's tax basis and holding period in a Security and (B) a statement that
the Holder is not then an
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entity described in Section 501 of the Code that is exempt from U.S. federal
income tax and (iii) a statement setting forth the address to which each such
Holder must remit such form.
(2) If the Guarantor or any such Person delivers such an
opinion, each Holder will have indemnification rights pursuant to this Section
805 only if and when gain for U.S. federal income tax purposes is actually
imposed on such Holder.
(3) When the Guarantor or any such Person, as the case may be,
receives from a Holder an indemnification claim form, the Guarantor or such
Person, as the case may be, shall within 15 business days remit to such Holder
a certified check in an amount equal to the sum of (i) the product of any gain
recognized as a result of the Indemnifiable Transaction and the highest
marginal tax rate in effect at the time of such Indemnifiable Transaction (the
"Indemnification Amount"), and (ii) the product of the Indemnification Amount
and such tax rate. For these purposes, a Holder's gain shall equal the amount
by which the fair market value of a Security at the time of such Indemnifiable
Transaction exceeds such Holder's adjusted tax basis in such Security.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders of Securities or Coupons,
the Company (when authorized by or pursuant to a Board Resolution), the
Guarantor (when authorized by or pursuant to a Board Resolution) and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the
Company or the Guarantor, and the assumption by any such successor of the
covenants of the Company or the Guarantor, as the case may be, contained herein
and in the Securities or the Guarantees; or
(b) to add to the covenants of the Company or the
Guarantor for the benefit of the Holders of all or any series of Securities (as
shall be specified in such supplemental indenture or indentures) or to
surrender any right or power herein conferred upon the Company or the
Guarantor; or
(c) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be exchanged for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities
in uncertificated form, provided any such action shall not
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adversely affect the interests of the Holders of Securities of any series or
any Coupons appertaining thereto in any material respect; or
(d) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by Sections 201 and
301 or of the related Guarantees as permitted by Section 202; or
(e) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609; or
(f) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not adversely affect the
interests of the Holders of Securities of any series then Outstanding or any
Coupons appertaining thereto in any material respect; or
(g) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of Securities, as herein set forth; or
(h) to add any additional Events of Default with respect
to all or any series of Securities (as shall be specified in such supplemental
indenture); or
(i) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided that
any such action shall not adversely affect the interests of any Holder of a
Security of such series and any Coupons appertaining thereto or any other
Security or Coupon in any material respect; or
(j) to secure the Securities or the Guarantees pursuant to
Section 1005, 1006 or otherwise; or
(k) to make provisions with respect to conversion or
exchange rights of Holders of Securities of any series; or
(l) to amend or supplement any provision contained herein
or in any supplemental indenture, provided that no such amendment or supplement
shall materially adversely affect the interests of the Holders of any
Securities then Outstanding.
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Section 902. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than 66-2/3% in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Board Resolution),
the Guarantor (when authorized by or pursuant to a Board Resolution) and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities of such series under this Indenture or of
the Securities of such series; provided, however, that no such supplemental
indenture, without the consent of the Holder of each Outstanding Security
affected thereby, shall
(a) change the Stated Maturity of the principal of, or
any premium or installment of interest on or any Additional Amounts with
respect to, any Security, or reduce the principal amount thereof or the rate
(or modify the calculation of such rate) of interest thereon or any Additional
Amounts with respect thereto, or any premium payable upon the redemption
thereof or otherwise, or change the obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the amount thereof provable in bankruptcy pursuant to Section 504, change the
redemption provisions or adversely affect the right of repayment at the option
of any Holder as contemplated by Article Twelve, or change the Place of
Payment, Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of the Holder, on or
after the date for repayment or in the case of change in control, after the
Change in Control Purchase Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in
this Indenture, or reduce the requirements of Section 1404 for quorum or
voting, or
(c) modify or effect in any manner adverse to the Holders
the terms and conditions of the obligations of the Company under the Securities
or the Coupons, the Guarantor under the Guarantees, or either of them hereunder,
in respect of the due and punctual payments of principal of, any premium or
interest on, or any Additional Amounts with respect to, the Securities, or
(d) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture
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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 shall have been included
expressly and solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any
other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive (in addition to those documents required by Section
102), and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of a Security theretofore or thereafter authenticated and
delivered hereunder and of any Coupon appertaining thereto shall be bound
thereby.
Section 905. Reference in Securities to Supplemental
Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company and
the Guarantor shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared with Guarantees endorsed thereon, if
appropriate, and executed by the
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Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest
and Additional Amounts.
The Company covenants and agrees for the benefit of the
Holders of the Securities of each series that it will duly and punctually pay
the principal of, any premium and interest on and any Additional Amounts with
respect to the Securities of such series in accordance with the terms thereof,
any Coupons appertaining thereto and this Indenture. Any interest due on any
Bearer Security on or before the Maturity thereof, and any Additional Amounts
payable with respect to such interest, shall be payable only upon presentation
and surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. Maintenance of Office or Agency.
The Company and the Guarantor shall maintain in each Place of
Payment for any series of Securities an Office or Agency where Securities of
such series, and Guarantees with respect thereto (but not Bearer Securities,
except as otherwise provided below, unless such Place of Payment is located
outside the United States), may be presented or surrendered for payment, where
Securities of such series may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Company and the
Guarantor in respect of the Securities of such series relating thereto and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company and the Guarantor shall maintain, subject to any laws
or regulations applicable thereto, an Office or Agency in a Place of Payment
for such series which is located outside the United States where Securities of
such series and any Coupons appertaining thereto, and Guarantees with respect
thereto, may be presented and surrendered for payment; provided, however, that
if the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company and the Guarantor shall maintain a Paying Agent
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in London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of such series are listed
on such exchange. The Company and the Guarantor 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 and the Guarantor shall fail to
maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto, and Guarantees with respect thereto, may be presented and surrendered
for payment at the place specified for the purpose with respect to such
Securities as provided in or pursuant to this Indenture, and the Company and
the Guarantor hereby appoint the Trustee as their agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture,
no payment of principal, premium, interest or Additional Amounts with respect
to Bearer Securities shall be made at any Office or Agency in the United States
or by check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; provided, however,
if amounts owing with respect to any Bearer Securities shall be payable in
Dollars, payment of principal of, any premium or interest on and any Additional
Amounts with respect to any such Security, or the Guarantees with respect
thereto, may be made at the Corporate Trust Office of the Trustee or any Office
or Agency designated by the Company in the Borough of Manhattan, The City of
New York, if (but only if) payment of the full amount of such principal,
premium, interest or Additional Amounts at all offices outside the United
States maintained for such purpose by the Company and the Guarantor in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company and the Guarantor may also from time to time
designate one or more other Offices or Agencies where the Securities of one or
more series, and the Guarantees endorsed thereon, may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company or the Guarantor of its obligation to
maintain an Office or Agency in each Place of Payment for Securities of any
series for such purposes. The Company and the Guarantor shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other Office or Agency. Unless otherwise
provided in or pursuant to this Indenture, the Company and the Guarantor hereby
designate as the Place of Payment for each series of Securities and the
Guarantees endorsed thereon, the Borough of Manhattan, The City of New York,
and initially appoints the Corporate Trust Office of the Trustee as the
Company's or the Guarantor's Office or Agency in the Borough of Manhattan, The
City of New York for such purpose. The Company and the Guarantor may
subsequently appoint a different Office or Agency in the Borough of Manhattan,
The City of New York for the Securities of any series, and the Guarantees
endorsed thereon.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be
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payable in a Foreign Currency, or so long as it is required under any other
provision of this Indenture, then the Company and the Guarantor will maintain
with respect to each such series of Securities, or as so required, at least one
exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in
Trust.
If the Company or the Guarantor, as the case may be, shall at
any time act as its own Paying Agent with respect to any series of Securities,
it shall, on or before each due date of the principal of, any premium or
interest on or Additional Amounts with respect to any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the Currency or Currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) sufficient to pay the principal or any premium,
interest or Additional Amounts so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and shall promptly
notify the Trustee of its action or failure so to act.
Whenever the Company or the Guarantor, as the case may be,
shall have one or more Paying Agents for any series of Securities, it shall, on
or prior to each due date of the principal of, any premium or interest on or
any Additional Amounts with respect to any Securities of such series, deposit
with any Paying Agent a sum (in the Currency or Currencies described in the
preceding paragraph) sufficient to pay the principal or any premium, interest
or Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless such Paying Agent is the
Trustee) the Company or the Guarantor, as the case may be, will promptly notify
the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional Amounts with respect
to Securities of such series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as provided in or pursuant to this Indenture;
(b) give the Trustee notice of any default by the Company
or the Guarantor (or any other obligor upon the Securities of such series) in
the making of any payment of principal, any premium or interest on or any
Additional Amounts with respect to the Securities of such series; and
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company or the Guarantor, as the case may be, may at any
time, for the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by
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Company Order of the Company or the Guarantor direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company, the Guarantor or such
Paying Agent, such sums to be held by the Trustee upon the same terms as those
upon which such sums were held by the Company, the Guarantor or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company or the Guarantor, as the case may be, in trust for the payment of the
principal of, any premium or interest on or any Additional Amounts with respect
to any Security of any series or any Coupon appertaining thereto and remaining
unclaimed for two years after such principal or any such premium or interest or
any such Additional Amounts shall have become due and payable shall be paid to
the Company or the Guarantor, as the case may be, on Company Request, or (if
then held by the Company or the Guarantor) shall be discharged from such trust;
and the Holder of such Security or any Coupon appertaining thereto, or
Guarantees endorsed thereon, shall thereafter, as an unsecured general
creditor, look only to the Company or the Guarantor (pursuant to the
Guarantees) for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
or the Guarantor (pursuant to Guarantee) as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment for such
series or to be mailed to Holders of Registered Securities of such series, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing nor shall it be later than two years after such principal and any
premium or interest or Additional Amounts shall have become due and payable,
any unclaimed balance of such money then remaining will be repaid to the
Company or the Guarantor, as the case may be.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of
Additional Amounts, the Company and the Guarantor each agrees to pay to the
Holder of any such Security or any Coupon appertaining thereto Additional
Amounts as provided in or pursuant to this Indenture or such Securities.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or any Coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided by the terms of such
series established hereby or pursuant hereto to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional
Amounts (if applicable) in any provision hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
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Except as otherwise provided in or pursuant to this Indenture
or the Securities of the applicable series, if the Securities of a series
provide for the payment of Additional Amounts, at least 10 days prior to the
first Interest Payment Date with respect to such series of Securities (or if
the Securities of such series shall not bear interest prior to Maturity, the
first day on which a payment of principal is made), and at least 10 days prior
to each date of payment of principal or interest if there has been any change
with respect to the matters set forth in the below mentioned Officers'
Certificate, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officers' Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and premium, if any, or
interest on the Securities of such series shall be made to Holders of
Securities of such series or the Coupons appertaining thereto who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of such series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities or Coupons, and the Company agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. The Company covenants and the Guarantor covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
Section 1005. Limitation on Liens.
Nothing in this Indenture or in the Securities shall in any
way restrict or prevent the Company, the Guarantor or any other Subsidiary from
issuing, assuming, guaranteeing or otherwise incurring any indebtedness;
provided, however, that neither the Company, the Guarantor nor any other
Subsidiary shall issue, assume or guaranty any notes, bonds, debentures or
other similar evidences of indebtedness for money borrowed secured by any Lien
on any asset now owned or hereafter acquired by it without making effective
provision whereby any and all Securities then or thereafter outstanding shall
be secured by a Lien equally and ratably with any and all other obligations
thereby secured, so long as any such obligations shall be so secured.
Notwithstanding the foregoing, the Company, the Guarantor or any other
Subsidiary, without so securing the Securities, may issue, assume or guaranty
indebtedness secured by the following Liens:
(a) Liens existing on the date of this Indenture or provided
for under the terms of agreements existing on the date hereof;
(b) Liens on property to secure (i) all or any portion of the
cost of exploration, production, gathering, processing, marketing,
drilling or development of such property, (ii) all or any portion of
the cost of acquiring, constructing, altering, improving or repairing
any property or assets, real or personal, or improvements used in
connection with such property,
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and (iii) indebtedness incurred by the Guarantor, the Company or any
other Subsidiary to provide funds for the activities set forth in
clauses (i) and (ii) above;
(c) Liens which secure indebtedness owing by a Subsidiary to
the Guarantor or to one or more other Subsidiaries, or to the
Guarantor and one or more other Subsidiaries;
(d) Liens on the property of any Person existing at the time
such Person becomes a Subsidiary;
(e) Liens on any property securing (i) indebtedness incurred
in connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of industrial
revenue bond financing, (ii) indebtedness issued or guaranteed by the
United States, any state or any department, agency or instrumentality
of either or (iii) indebtedness issued or guaranteed by (Y) a foreign
government, any state or any department, agency or instrumentality of
either or (Z) an international finance agency or any division or
department thereof, including the World Bank, the International
Finance Corp. and the Multilateral Investment Guarantee Agency;
(f) any Lien extending, renewing or replacing (or
successive extensions, renewals or replacements of) any Lien of the
type set forth in paragraphs (a) through (e) above, which Lien exists
on the date of this Indenture;
(g) any Ordinary Course Lien (as defined below) arising,
and only so long as continuing, in the ordinary course of the business
of the Guarantor; or
(h) Liens which secure Limited Recourse Indebtedness.
Notwithstanding the foregoing, the Guarantor and any one or
more other Subsidiaries may issue, assume or guaranty the following
indebtedness secured by Liens on assets without regard to the foregoing
limitations: indebtedness in any aggregate principal amount which, together
with the aggregate outstanding principal amount of all other indebtedness of
the Company, the Guarantor and its other Subsidiaries so secured (excluding
indebtedness secured by the permitted Liens described above), and the aggregate
amount of Sale/Leaseback Transaction obligations which would otherwise be
subject to the provisions of Section 1006, does not at the time such
indebtedness is incurred exceed 10% of the Guarantor's Consolidated Net Worth
as shown on the most recent audited consolidated balance sheet of the Guarantor
and its Subsidiaries.
Notwithstanding the foregoing, nothing in this Section 1005
shall be deemed to prohibit or otherwise limit the following types of
transactions:
(1)(i) the sale, granting of Liens with respect to or other
transfer of crude oil, natural gas or other petroleum hydrocarbons in
place, for a period of time until, or in an amount such that, the
transferee will realize therefrom a specified amount (however
determined) of money
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or such crude oil, natural gas or other petroleum hydrocarbons, or
(ii) the sale or other transfer of any other interest in property of
the character commonly referred to as a production payment, overriding
royalty, forward sales or similar interest; and
(2) the granting of Liens required by any contract or statute
in order to permit the Guarantor or a Subsidiary to perform any
contract or subcontract made by it with or at the request of the
United States government or any foreign government or international
finance agency, any state or any department thereof, or any agency or
instrumentality thereof, or to secure partial, progress, advance or
other payments to the Guarantor or any other Subsidiary by any such
entity pursuant to the provisions of any contract or statute.
"Lien" shall mean, with respect to any asset, any mortgage,
lien, pledge, security interest or encumbrances of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law. The Company, the Guarantor or any other Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset. The right of
set-off, whether by operation of law or by contract, does not constitute a Lien
unless there is a related obligation to maintain a deposit of cash or other
assets in respect of which such right of set-off may be exercised.
"Ordinary Course Lien" shall mean:
(a) Liens for taxes, assessments or governmental changes
or levies on the property of the Company, the Guarantor or any other
Subsidiary if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good
faith and by appropriate proceedings and for which adequate reserves
in accordance with generally accepted accounting principles shall have
been set aside on the books of the Company or the Guarantor;
(b) Liens imposed by law, such as carriers',
warehousemen's, landlords' and mechanics' liens and other similar
liens arising in the ordinary course of business which secure
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with generally accepted accounting
principles shall have been set aside on the books of the Company or
the Guarantor;
(c) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation;
(d) Utility easements, building restrictions and such
other encumbrances or charges against real property as are of a nature
generally existing with respect to properties of a similar character
and which do not in any material way affect the marketability of the
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same or interfere with the use thereof in the business of the Company,
the Guarantor or its other Subsidiaries, as the case may be;
(e) Liens arising under operating agreements or similar
agreements in respect of obligations which are not yet due or which
are being contested in good faith by appropriate proceedings;
(f) Liens reserved in oil, gas and/or mineral leases for
bonus or rental payments and for compliance with the terms of such
leases;
(g) Liens pursuant to partnership agreements, oil, gas
and/or mineral leases, farm-out-agreements, division orders, contracts
for the sale, purchase, exchange, or processing of oil, gas and/or
other hydrocarbons, unitization and pooling declarations and
agreements, operating agreements, development agreements, area of
mutual interest agreements, forward sale agreements, oil and gas
delivery obligations, and other agreements which are customary in the
oil, gas and other mineral exploration, development and production
business and in the business of processing of gas and gas condensate
production of the extraction of products therefrom;
(h) Liens on personal property (excluding the capital
stock or indebtedness of any Subsidiary) securing indebtedness
maturing not more than one year from the date of its creation; and
(i) Liens relating to a judgment or other court-ordered
award or settlement as to which the Guarantor or the Company has not
exhausted its appellate rights.
"Consolidated Net Worth" means the consolidated stockholders'
equity of the Guarantor, determined in accordance with generally accepted
accounting principles.
Section 1006. Limitation on Sale/Leaseback Transactions.
Neither the Company, the Guarantor nor any other Subsidiary
will enter into any Sale/Leaseback Transaction with any Person (other than the
Guarantor or a Subsidiary) providing for a term of more than three years
unless:
(a) the Company, the Guarantor or such other Subsidiary would
be permitted, pursuant to the terms of Section 1005, to incur
indebtedness in an aggregate principal amount equal to or exceeding
the value of the Sale/Leaseback Transaction secured by a Lien on the
property subject to such Sale/Leaseback Transaction;
(b) since the date of this Indenture and within a period
commencing six months prior to the Sale/Leaseback Transaction and
ending six months after the consummation thereof,
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the Company, the Guarantor or such other Subsidiary expends for any
property (including amounts expended for the acquisition, exploration,
drilling or development thereof, or for additions, alterations,
improvements or repairs thereto) an amount up to the net proceeds of
such Sale/Leaseback Transaction, and the Company or the Guarantor, as
the case may be, elects to designate such amount as a credit against
such Sale/Leaseback Transaction (with any amount of such net proceeds
not being so designated to be applied as set forth in paragraph (c)
below); or
(c) the Company or Guarantor, as the case may be, during or
immediately after the expiration of the 12 month period following the
consummation of the Sale/Leaseback Transaction, applies to the
voluntary retirement, redemption or defeasance of the Securities and
its other Senior Indebtedness an amount equal to the greater of (i)
the net proceeds of the Sale/Leaseback Transaction and (ii) the fair
value, in the opinion of the Board of Directors of the Company or the
Guarantor, of the subject property of the Sale/Leaseback Transaction
at the time of such transaction (adjusted, in either case, to reflect
the remaining term of the lease and any amount applied pursuant to
paragraph (b) above), less an amount equal to the principal amount of
other Senior Indebtedness voluntarily retired by the Company or the
Guarantor during such 12-month period.
"Sale/Leaseback Transaction" means any arrangement providing for the
leasing to the Company, the Guarantor or any other Subsidiary by any Person
(other than the Guarantor, the Company or any other Subsidiary) of any property
which has been, or is to be, sold or transferred by the Guarantor, the Company
or such other Subsidiary to such Person or to any Person (other than the
Company or any other Subsidiary) to which funds have been or are to be advanced
by such Person on the security of the leased property, except with respect to
any lease that secures or relates to obligations issued by or on behalf of (a)
the United States, any state or any department, agency or instrumentality of
either, (b) a foreign government, any state or any department agency or
instrumentality of either, or (c) an international finance agency or any
division or department thereof, including the World Bank, the International
Finance Corp. and the Multilateral Investment Guarantee Agency, in connection
with the financing of the cost of construction, improvement or equipping of
such property.
Section 1007. Corporate Existence.
Subject to Articles Eight and Fifteen, each of the Company and
the Guarantor shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence and that of each other
Subsidiary and their respective rights (charter and statutory) and franchises;
provided, however, that the foregoing shall not obligate the Company, the
Guarantor or any other Subsidiary to preserve any such right or franchise if
the Company, the Guarantor or any other Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of its business or
the business of such other Subsidiary.
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Section 1008. Waiver of Certain Covenants.
The Company or the Guarantor, as the case may be, may omit in
any particular instance to comply with any term, provision or condition set
forth in Sections 1005, 1006 or 1007 with respect to the Securities of any
series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series, by
Act of such Holders, either shall waive such compliance in such instance or
generally shall have waived compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the Guarantor and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 1009. Company Statement as to Compliance; Notice
of Certain Defaults.
(a) Each of the Company and the Guarantor shall deliver
to the Trustee, within 120 days after the end of each fiscal year, a written
statement (which need not be contained in or accompanied by an Officers'
Certificate) signed by the principal executive officer, the principal financial
officer or the principal accounting officer of the Company and the Guarantor,
respectively, stating that
(1) a review of the activities of the Company or the
Guarantor, as the case may be, during such year and of its performance
under this Indenture has been made under his or her supervision, and
(2) to the best of his or her knowledge, based on such
review, (i) the Company or the Guarantor, as the case may be, has
complied with all the conditions and covenants imposed on it under
this Indenture throughout such year, or, if there has been a default
in the fulfillment of any such condition or covenant, specifying each
such default known to him or her and the nature and status thereof,
and (ii) no event has occurred and is continuing which is, or after
notice or lapse of time or both would become, an Event of Default, or,
if such an event has occurred and is continuing, specifying each such
event known to him and the nature and status thereof.
(b) Each of the Company and the Guarantor shall deliver
to the Trustee, within five days after the occurrence thereof, written notice
of any Event of Default or any event which after notice or lapse of time or
both would become an Event of Default.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the
Company as permitted or required by the terms of such Securities shall be made
in accordance with the terms of such Securities and (except as otherwise
provided herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution or an Officers' Certificate. In
case of any redemption at the election of the Company of (a) less than all of
the Securities of any series or (b) all of the Securities of any series, with
the same issue date, interest rate or formula, Stated Maturity and other terms,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
of such series to be redeemed.
Section 1103. Selection by Trustee of Securities to be
Redeemed.
If less than all of the Securities of any series with the same
issue date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security
of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal of such Securities which has been or is
to be redeemed.
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Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
the Holders of Securities to be redeemed. Failure to give notice by mailing in
the manner herein provided to the Holder of any Registered Securities
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be redeemed,
(d) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such Security
will receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(e) that, on the Redemption Date, the Redemption Price
shall become due and payable upon each such Security or portion thereof to be
redeemed, and, if applicable, that interest thereon shall cease to accrue on
and after said date,
(f) the place or places where such Securities, together
(in the case of Bearer Securities) with all Coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and any accrued interest and Additional Amounts pertaining
thereto,
(g) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for redemption
or the amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company, the
Trustee and any Paying Agent is furnished,
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(h) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not subject
to redemption on the Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be made,
(i) the CUSIP number or the Euroclear or the Cedel
reference numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption mailed as contemplated by Section 106
need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit,
with respect to the Securities of any series called for redemption pursuant to
Section 1104, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date, unless otherwise specified pursuant to Section 301 or in
the Securities of such series) any accrued interest on and Additional Amounts
with respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
any accrued interest and Additional Amounts to the Redemption Date; provided,
however, that, except as otherwise provided in or pursuant to this Indenture or
the Bearer Securities of such series, installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of Coupons for such interest (at
an Office or Agency located outside the United States except as otherwise
provided in Section 1002), and provided, further, that,
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except as otherwise specified in or pursuant to this Indenture or the
Registered Securities of such series, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that any interest or Additional Amounts represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an Office or Agency for such Security located outside of the United States
except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium, until
paid, shall bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any Office or Agency for such Security (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute, the Guarantees of the Guarantor shall be endorsed on and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge,
a new Security in global form in a denomination equal to and in exchange for
the unredeemed portion of the principal of the Security in global form so
surrendered.
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ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS
Section 1201. Applicability of Article.
Securities of any series which are repayable at the option of
the Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be canceled. Notwithstanding anything to the contrary contained in
this Section 1201, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE THIRTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1301. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for
such amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company or the Guarantor may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called
at any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section 1401, to be
held at such time and at such place in the Borough of Manhattan, The City of
New York, or, if Securities of such series have been issued in whole or in part
as Bearer Securities, in London or in such place outside the United States as
the Trustee shall determine. Notice of every meeting of Holders of Securities
of any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be given,
in the manner provided in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company or the Guarantor (in
each case, by or pursuant to a Board Resolution) or the Holders of at least 10%
in principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1401, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of or made the first publication of
the notice of such meeting within 21 days after receipt of such request
(whichever shall be required pursuant to Section 106) or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company,
the Guarantor or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series
are to be issued as Bearer Securities, in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in clause
(a) of this Section.
Section 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities
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of such series by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders of Securities of
any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company or the Guarantor and their respective counsel.
Section 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; provided, however, that if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons
entitled to vote 66-2/3% in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1402(1), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities of
that series; provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly convened and at which a quorum is present
as aforesaid only by the affirmative vote of the Holders of 66-2/3% in
principal amount of the Outstanding Securities of that series; and provided,
further, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
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Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
Coupons appertaining thereto, whether or not such Holders were present or
represented at the meeting.
Section 1405. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of such series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company, the Guarantor or Holders of Securities as provided in
Section 1402(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting, each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000 principal amount
of Securities of such series held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting;
and the meeting may be held as so adjourned without further notice.
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Section 1406. Counting Votes and Recording Action of
Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, another to the Guarantor and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE FIFTEEN
PURCHASES OF SECURITIES UPON CHANGE IN CONTROL
Section 1501. Purchase of Securities at Option of the
Holder upon Change in Control.
(1) If on or prior to Maturity, there shall have occurred a
Change in Control (as defined herein), the Securities shall be purchased, at
the option of the Holder thereof, by the Company at the purchase price
specified in the Securities (the "Change in Control Purchase Price"), on the
date that is 35 Business Days after the occurrence of the Change in Control
(the "Change in Control Purchase Date"), subject to satisfaction by or on
behalf of the Holder of the requirements set forth in Section 1501(3).
A "Change in Control" shall be deemed to have occurred at such time as
any of the following events shall occur:
(a) Any person (for purposes of paragraph (a) of this
Section 1501(1) only, the term "person" shall mean a "person" as
defined in or for purposes of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act of 1934 (as defined herein), or any successor
provision to either of the foregoing, including any "group" acting for
the purposes of acquiring, holding or disposing of securities within
the meaning of Rule 13D-5(b)(1) under the Exchange Act
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<PAGE> 103
of 1934), together with its Affiliates and Associates (as defined
herein), shall file or become obligated to file a report under or in
response to Schedule 13D or 14D-1 (or any successor schedule, form or
report) pursuant to the Exchange Act of 1934 disclosing that such
person has become the beneficial owner (as the term "beneficial owner"
is defined in Rule 13d-3 under the Exchange Act of 1934, or any
successor provision) of either (A) 50% or more of the shares of Common
Stock then outstanding or (B) 50% or more of the voting power of the
Voting Stock of the Guarantor then outstanding; provided, however,
that for purposes of paragraph (a) of this Section 1501(1), a person
shall not be deemed the beneficial owner of (1) any securities
tendered pursuant to a tender offer or exchange offer made by or on
behalf of such person, or its Affiliates or Associates, until such
tendered securities are accepted for purchase or exchange thereunder,
or (2) any securities in respect of which beneficial ownership by such
person arises solely as a result of a revocable proxy delivered in
response to a proxy or consent solicitation that is made pursuant to,
and in accordance with, the Exchange Act of 1934 and the applicable
rules and regulations thereunder and is not then reportable on
Schedule 13D (or any successor schedule, form or report) under the
Exchange Act of 1934.
(b) There shall be consummated any sale, transfer, lease
or conveyance of all or substantially all of the properties and assets
of the Guarantor to any other Corporation or Corporations or other
person or persons (other than a Subsidiary of the Guarantor).
(c) There shall be consummated any consolidation of the
Guarantor with or merger of the Guarantor with or into any other
Person (whether or not affiliated with the Guarantor) in which the
Guarantor is not the sole surviving or continuing Corporation or
pursuant to which the shares of Common Stock outstanding immediately
prior to the consummation of such consolidation or merger are
converted into cash, securities or other property, other than a
consolidation or merger in which the holders of shares of Common Stock
receive, directly or indirectly, (A) 75% or more of the common stock
of the sole surviving or continuing Corporation outstanding
immediately following the consummation of such consolidation or merger
and (B) securities representing 75% or more of the combined voting
power of the Voting Stock of the sole surviving or continuing
Corporation outstanding immediately following the consummation thereof
of such consolidation or merger.
"Exchange Act of 1934" shall mean the Securities Exchange Act of 1934,
as amended.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2
under the Exchange Act of 1934, as in effect on the date hereof.
(2) Within 15 Business Days after the occurrence of a Change
in Control, the Company shall mail a written notice of Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law, including, without limitation, Rule 13e-4) and
shall cause a copy of such notice to be published at least once in an
Authorized
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Newspaper located in New York City and, if any Securities are then listed on
any stock exchange located outside the United States, in an Authorized
Newspaper in such city as the stock exchange so requires. The notice shall
include or transmit a form of Change in Control Purchase Notice (as described
below) to be completed by the Holder and shall state:
(a) the events causing a Change in Control and the date of
such Change in Control;
(b) the date by which the Change in Control Purchase Notice
pursuant to this Section 1601 must be given;
(c) the Change in Control Purchase Date;
(d) the Change in Control Purchase Price;
(e) the name and address of the Trustee and the Office or
Agency;
(f) that the Securities must be surrendered to the Trustee or
the Office or Agency to collect payment;
(g) that the Change in Control Purchase Price for any Security
as to which a Change in Control Purchase Notice has been duly given
and not withdrawn will be paid promptly following the later of the
Change in Control Purchase Date or the time of surrender of such
Security as described in (f);
(h) the procedures the Holder must follow to exercise rights
under this Section 1501(1) and a brief description of those rights;
and
(i) the procedures for withdrawing a Change in Control
Purchase Notice.
(3) A Holder may exercise its rights specified in Section 1501(1)
upon delivery of a written notice of purchase (a "Change in Control Purchase
Notice") to the Trustee or to an Office or Agency at any time prior to the
close of business of the Change in Control Purchase Date, stating:
(a) the certificate number or numbers of the Security or
Securities which the Holder will deliver to be purchased;
(b) the portion of the principal amount of the Security or
Securities which the Holder will deliver to be purchased, which portion must be
$1,000 or an integral multiple thereof; and
(c) that such Security or Securities shall be purchased on the
Change in Control Purchase Date pursuant to the terms and conditions specified
in the Securities.
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<PAGE> 105
The delivery of the Security, by hand or by registered mail prior to,
on or after the Change in Control Purchase Date (together with all necessary
endorsements), to the Trustee or to an Office or Agency shall be a condition
precedent to the obligation of the Company to pay to the Holder the Change in
Control Purchase Price therefor; provided, however, that such Change in Control
Purchase Price shall be so paid pursuant to this Section 1501 only if the
Security so delivered to the Trustee or such Office or Agency shall conform in
all respects to the description thereof set forth in the related Change in
Control Purchase Notice.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Trustee or to an Office or Agency, the Change in Control Purchase Notice
contemplated by this Section 1501(3) shall have the right to withdraw such
Change in Control Purchase Notice at any time prior to or on the Change in
Control Purchase Date by delivery of a written notice of withdrawal to the
Trustee or to such Office or Agency in accordance with Section 1502.
Section 1502. Effect of Change in Control Purchase Notice.
Upon receipt by the Company of the Change in Control Purchase
Notice specified in Section 1501(3), the Holder of the Security in respect of
which such Change in Control Purchase Notice was given shall (unless such
Change in Control Purchase Notice is withdrawn as specified in the following
paragraph) thereafter be entitled to receive solely the Change in Control
Purchase Price with respect to such Security. Such Change in Control Purchase
Price shall be paid to such Holder promptly following the later of (x) the
Change in Control Purchase Date, as the case may be, with respect to such
Security (provided the conditions in Section 1501(3), as applicable, have been
satisfied) and (y) the time of delivery of such Security to the Trustee or to
an Office or Agency by the Holder thereof in the manner required by Section
1501(3), as applicable.
A Change in Control Purchase Notice may be withdrawn by means
of a written notice of withdrawal delivered to the office of the Trustee or to
an Office or Agency at any time prior to the close of business on the Change in
Control Purchase Date, specifying:
(a) the certificate number or numbers of the Security or
Securities in respect of which such notice of withdrawal is being submitted;
(b) the principal amount of the Security or Securities with
respect to which such notice of withdrawal is being submitted; and
(c) the principal amount, if any, of such Security or
Securities which remains subject to the original Change in Control Purchase
Notice, and which has been and will be delivered for purchase by the Guarantor.
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<PAGE> 106
There shall be no purchase of any Securities pursuant to
Section 1501 if there has occurred and in continuing an Event of Default (other
than a default in the payment of the Change in Control Purchase Price).
Section 1503. Deposit of Change in Control Purchase Price.
Prior to 12:00 Noon (local time in The City of New York) on
the Business Day following the Change in Control Purchase Date, the Company
shall deposit with the Trustee (or, if the Guarantor or a Subsidiary or an
Affiliate of any of them is acting as Paying Agent, shall segregate and hold in
trust as provided in Section 1003) an amount of cash in immediately available
funds or securities, if expressly permitted hereunder, sufficient to pay the
aggregate Change in Control Purchase Price of all the Securities or portions
thereof which are to be purchased. If a deposit is made with the Trustee of
the aforesaid amount of cash or securities, the Securities or portions thereof
with respect to which a Change in Control Purchase Notice has been delivered
and not validly withdrawn shall become due and payable as of the Business Day
following the applicable Change in Control Purchase Date, and on and after such
date interest payable in respect of such Securities shall cease and all other
rights of the Holders thereof shall terminate, other than the right to receive
the Change in Control Purchase Price upon delivery of such Securities to the
Trustee.
Section 1504. Covenant to Comply With Securities Laws Upon
Purchase of Securities.
In connection with any purchase of securities under Section
1501 hereof, the Company shall (a) comply with Rule 13e-4 under the Exchange
Act of 1934, if applicable, (b) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Exchange Act of 1934, if
applicable, and (c) otherwise comply with all Federal and state securities laws
regulating the purchase of the Securities (including positions of the
Commission under applicable no-action letters) so as to permit the rights and
obligation under Section 1501 to be exercised in the time and in the manner
specified in Section 1501 and 1502.
Section 1505. Repayment to the Company.
The Trustee shall return to the Company any cash, together
with interest or dividends, if any, thereon (subject to the provisions of
Section 605) held by it for the payment of the Change in Control Purchase Price
of the Securities that remain unclaimed as provided in the Securities;
provided, however, that to the extent the aggregate amount of cash deposited by
the Company pursuant to Section 1503 exceeds the aggregate Change in Control
Purchase Price of the Securities or portions thereof to be purchased, then
promptly after the Change in Control Purchase Date, the Trustee shall return
any such excess to the Company together with interest or dividends, if any,
thereon (subject to the provisions of Section 605).
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ARTICLE SIXTEEN
GUARANTEES
Section 1601. Guarantee.
The Guarantor hereby irrevocably and unconditionally
guarantees to each Holder of a Security authenticated and delivered by the
Trustee, and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of and any premium and interest on and any Additional
Amounts with respect to such Security and the due and punctual payment of any
payments provided for pursuant to the terms of such Security and any Coupons
appertaining thereto, when and as the same shall become due and payable,
whether at the State Maturity, by declaration of acceleration, call for
redemption or repayment or otherwise, in accordance with the terms of such
Security, any such Coupons and this Indenture, and any and all other amounts
owed by the Company to the Trustee or the Holders under the terms of this
Indenture. This guarantee will not be discharged with respect to any
Securities of any series or Coupons appertaining thereto except by payment in
full of the principal thereof, premium, if any, and interest thereon and all
other amounts payable thereunder and under this Indenture with respect thereto.
The Guarantor hereby expressly waives its right to require the Trustee to
pursue or exhaust its legal or equitable remedies against the Issuer prior to
exercising its rights under this guarantee. In case of the failure of the
Company punctually to make any such payment, the Guarantor hereby agrees to
cause such payment to be made punctually when and as the same shall become due
and payable, whether at the Stated Maturity or by declaration of acceleration,
call for redemption or repayment or otherwise, and as if such payment were made
by the Company.
The Guarantor hereby agrees that any amounts to be paid by it
hereunder shall be paid without deduction or withholding for or on account of
any and all present or future tax, duty, assessment or governmental charge
imposed upon or as a result of such payment by the Government of the United
States, or any state or other political subdivision or taxing authority thereof
or therein, or if deduction or withholding of any such tax, duty, assessment or
charge shall at any time be required by or on behalf of the Government of the
United States or any such state, political subdivision or taxing authority, the
Guarantor shall pay such additional amount in respect of principal, premium, if
any, and interest, if any, as may be necessary in order that the net amounts
paid to the Holder of a Security or the Trustee on behalf of the Holder of such
Security, as the case may be, pursuant to this guarantee after such deduction
or withholding shall not be less than the amount provided for in such Security
to be then due and payable; except that no such additional amount shall be
payable in respect of any Security to any Holder (a) who is subject to such
tax, duty, assessment or governmental charge in respect of such Security by
reason of his being connected with the United States otherwise than merely by
the holding or ownership of such Security, or (b) who is not dealing at arm's
length with the Guarantor (within the meaning of the Internal Revenue Code as
amended from time to time).
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The Guarantor hereby agrees that its obligations hereunder
shall be as if it were principal debtor and not merely surety, and shall be
absolute and unconditional, irrespective of the validity, regularity or
enforceability of any Security or this Indenture, the absence of any action to
enforce the same, any waiver or consent by the Holder of such Security or by the
Trustee with respect to any provisions thereof or of this Indenture, the
obtaining of any judgment against the Company or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives the benefits of
division and discussion, diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any Security or the indebtedness evidenced thereby and
all demands whatsoever, and covenants that no guarantee (including any Guarantee
endorsed on a Security) will be discharged in respect of any Security except
by complete performance of the obligations contained in such Security and in
this guarantee. The Guarantor hereby agrees that, in the event of a default in
payment of principal (or premium, if any) or interest, if any, on or Additional
Amounts with respect to any Security, or a default in any payment referred to
therein, legal proceedings may be instituted by the Trustee on behalf of, or by,
the Holder of such Security, on the terms and conditions set forth in this
Indenture, directly against the Guarantor to enforce this guarantee without
first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holders
of the Securities of a particular series against the Company in respect of any
amounts paid by the Guarantor on account of such Securities pursuant to the
provisions of this guarantee or this Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments arising
out of, or based upon, such right of subrogation until the principal of, any
premium and interest on, and Additional Amounts with respect to, all Securities
of such series issued hereunder shall have been paid in full.
Section 1602. Execution and Delivery of Guarantees.
The Guarantees to be endorsed on the Securities of each series
shall include the terms of the guarantee set forth in Section 202 (except that
references to premium and interest need be included only if any premium or
interest, respectively, is provided for in the terms of such series) and any
other terms that may be set forth in the form established pursuant to Section
202 with respect to such series. The Guarantor hereby agrees to execute the
Guarantees, in a form established pursuant to Section 202, to be endorsed on
each Security authenticated and delivered by the Trustee.
The Guarantees shall be executed on behalf of the Guarantor by
its Chairman of the Board, a Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Guarantees may be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Guarantor shall
bind the Guarantor, notwithstanding that such individuals or any of them have
cased to hold such offices prior to the authentication and delivery of such
Guarantees or did not hold such offices at the date of such Guarantees.
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<PAGE> 109
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee endorsed thereon on behalf of the Guarantor. The Guarantor hereby
agrees that its Guarantee set forth in Section 202 and in this Article shall
remain in full force and effect notwithstanding any failure to endorse a
Guarantee on any Security.
This guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment on any Security, in
whole or in part, is rescinded or must otherwise be restored to the Company or
the Guarantor upon the bankruptcy, liquidation or reorganization of the Company
or otherwise.
ARTICLE SEVENTEEN
MISCELLANEOUS
Section 1701. Submission to Jurisdiction
The Company hereby acknowledges and agrees for the benefit of
the Trustee and the Holders of Securities and Coupons that any judicial
proceedings instituted in relation to any matter arising out of this Indenture,
the Securities or the Coupons may be brought in any court having subject matter
jurisdiction in the Borough of Manhattan, The City of New York, New York
(including, without limitation, federal courts located in the Borough of
Manhattan, The City of New York, New York), and, by execution and delivery of
this Indenture, the Company hereby irrevocably accepts generally and
unconditionally, the jurisdiction of the aforesaid courts, acknowledges their
competence and irrevocably agrees to be bound by any judgment rendered in any
such proceeding. The Company also irrevocably and unconditionally waives for
the benefit of the Trustee and the Holders of Securities and Coupons any
immunity from jurisdiction and any immunity from legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) in respect of this Indenture. The Company
hereby irrevocably designates and appoints for the benefit of the Trustee and
the Holders of Securities, Guarantees and Coupons for the term of this
Indenture CT Corporation, 1633 Broadway, New York, New York 10019 as its agent
to receive on its behalf service of all process (with a copy of all such
service of process to be delivered to CT Corporation, 1633 Broadway, New York,
New York 10019) brought against it with respect to any such proceeding in any
such court in the City of New York, such service being hereby acknowledged by
the Company to be effective and binding service on it in every respect whether
or not the Company shall then be doing or shall have at any time done business
in New York. Such appointment shall be irrevocable so long as any of the
Securities or Coupons
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or the obligations of the Company hereunder remain outstanding until the
appointment of a successor by the Company and such successor's acceptance of
such appointment. Upon such acceptance, the Company shall notify the Trustee
of the name and address of such successor. The Company further agrees for the
benefit of the Trustee and the Holders of the Securities and the Coupons to
take any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of said CT Corporation in full force and effect so long as any of
the Securities or Coupons or the obligations of the Company hereunder shall be
outstanding. The Trustee shall not be obligated and shall have no
responsibility with respect to any failure by the Company to take such action.
Nothing herein shall affect the right to serve process in any other manner
permitted by any law or limit the right of the Trustee or any Holder to
institute proceedings against the Company in the courts of any other
jurisdiction or jurisdictions.
Section 1702. Stamp Duty
The Company and the Guarantor, jointly and severally, agree to
pay or reimburse any Holder of Securities or Coupons for stamp duty or similar
governmental charges imposed upon this Indenture, any Securities or any
Coupons.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
[SEAL] APACHE FINANCE PTY LTD
By:
--------------------------
Name:
Title:
Attest:
By:
--------------------------
Name:
-----------------------
Title:
----------------------
[SEAL] APACHE CORPORATION
Attest:
By By
------------------------- --------------------------
Name: Cheri L. Peper Name: Matt Dundrea
Title: Secretary Title: Vice President and Treasurer
102
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[SEAL] THE CHASE MANHATTAN BANK,
as Trustee
Attest:
By By
------------------------- --------------------------
Name: Name:
Title: Title:
103
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STATE OF TEXAS)
: SS.:
COUNTY OF HARRIS)
On the _______ day of ______________, 1997, before me
personally came Matthew W. Dundrea, to me known, who, being by me duly sworn,
did depose and say that he is the Vice President and Treasurer of APACHE
CORPORATION, a State of Delaware corporation, one of the persons described in
and who executed the foregoing instrument; that he knows the seal of said
Corporation; that the seal affixed to said instrument is such Corporation's
seal; that it was so affixed by authority of the Board of Directors of said
Corporation; and that he signed his name thereto by like authority.
--------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF _____________)
: SS.:
COUNTY OF ____________)
On the _______ day of ______________, 1997, before me
personally came _______________, to me known, who, being by me duly sworn, did
depose and say that he is a Director of APACHE FINANCE PTY LTD, a proprietary
company with limited liability organized under the laws of the Australian
Capital Territory, Australia, one of the persons described in and who executed
the foregoing instrument; that he knows the seal of said Corporation; that the
seal affixed to said instrument is such Corporation's seal; that it was so
affixed by authority of the Board of Directors of said Corporation; and that he
signed his name thereto by like authority.
--------------------------
Notary Public
[NOTARIAL SEAL]
104
<PAGE> 113
STATE OF NEW YORK)
: SS.:
COUNTY OF NEW YORK)
On the _____ day of ________________, 1997, before me
personally came _______________, to me known, who, being by me duly sworn, did
depose and say that he is a _____________ of THE CHASE MANHATTAN BANK, a
banking corporation organized and existing under the laws of the State of New
York, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed
to said instrument is such Corporation's seal; that it was so affixed by
authority of the Board of Directors of said Corporation; and that he signed his
name thereto by like authority.
--------------------------
Notary Public
[NOTARIAL SEAL]
105
<PAGE> 1
[FORM OF DEBT SECURITY]
EXHIBIT 4.2
THIS NOTE IS A GLOBAL NOTE. UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITORY ") TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED PRINCIPAL AMOUNT
No: 1 $
CUSIP: Apache Finance Pty Ltd
% NOTE DUE
APACHE FINANCE PTY LTD (A.C.N. 080 571 900), a proprietary company
with limited liability organized under the laws of the Australian Capital
Territory, Australia (the "Company", which term includes any successor
corporation under the Indenture hereinafter referred to), for value received
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of Dollars on ("Stated
Maturity") and to pay interest thereon from ,1997 or from the
most recent date in respect of which interest has been paid or duly provided
for, on and of each year (each, an "Interest Payment
Date"), commencing
, 1998, and at Stated Maturity or upon such other date on which the
principal of this Note becomes due and payable, whether by declaration of
acceleration, notice of redemption or notice of option to elect repayment or
otherwise, and including any Redemption Date or Change in Control Purchase Date
(each such date, "Maturity"), at the rate of % per annum, until the
principal hereof is paid or duly made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture referred to below, be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered
as of the close of business on or , as the case
may be (whether or not a Business Day), next preceding such Interest Payment
Date (each such date, a "Regular Record Date"). Any such interest which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder of this
Note on such Regular Record Date, and shall be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof shall be given to
the Holder of this Note not less than 10 days prior to such Special Record
Date, or may be paid in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Any interest paid on this Note shall be
increased to the extent necessary to pay Additional Amounts as set forth in
this Note.
Payment of the principal of, and any premium and interest on, this
Note will be made at the office or agency maintained for that purpose in
the Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the Person in whose name
this Note is registered at the close of business on the related Record
Date; provided further, that, notwithstanding anything else contained herein,
if this Note is a Global Security and is held in book-entry form through
the facilities of the Depository, payments on this Note will be made to
the Depository or its nominee in accordance with the arrangements then in
effect between the Trustee and the Depository.
Reference is hereby made to the further provisions of this Note
set forth on the succeeding pages hereof, which further provisions shall for
all purposes have the same effect as if set forth herein.
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein,
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank, as Trustee
By:
----------------------------
Authorized Officer
<PAGE> 2
APACHE FINANCE PTY LTD
% NOTE DUE
This Note is one of a duly authorized issue of Securities of the
Company issued under an Indenture, dated as of , 1997 (the
"Indenture"), among the Company, Apache Corporation (the "Guarantor") and The
Chase Manhattan Bank (the "Trustee", which term includes any successor trustee
under the Indenture), designated as the % Notes due (the
"Notes"). Reference is made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Notes and
of the terms upon which the Notes are, and are to be, authenticated and
delivered. All terms used in this Note and the Guarantee set forth below
which are not defined herein and which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
The Indenture provides for the defeasance of the Notes, the
Guarantees and certain covenants in certain circumstances.
This Note is unsecured as to payment of principal, interest and
premium, if any, and ranks pari passu with all other unsecured unsubordinated
indebtedness of the Company.
Interest payments on this Note will include interest accrued to
but excluding the applicable Interest Payment Date or Maturity hereof, as the
case may be. Interest payments for this Note shall be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the applicable Interest Payment Date or Maturity
with respect hereto, as the case may be, does not fall on a Business Day,
payment of principal or interest otherwise payable on such day need not be made
on such day, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or at Maturity and no
interest shall accrue with respect to such payment for the period from and
after the Interest Payment Date or such Maturity, as the case may be, to the
date of payment.
The Notes will not be subject to any sinking fund and, except as
provided in the Indenture or herein, will not be redeemable or repayable prior
to their Stated Maturity.
If any Event of Default with respect to the Notes shall occur and
be continuing, the principal of the Notes may be declared due and payable
in the manner and with the effect provided in the Indenture.
As set forth in, and subject to the provisions of, the Indenture, no
Holder of any Note will have any right to institute any proceeding with
respect to the Indenture, the Notes or the Guarantees, or for any remedy
thereunder, unless (i) such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to the Notes,
(ii) the Holders of not less than 25% in principal amount of the Outstanding
Notes shall have made written request, and offered reasonable indemnity,
to the Trustee to institute such proceeding as Trustee, (iii) the Trustee shall
have failed to institute such proceeding within 60 days after receipt of such
written notice, request and offer of indemnity and (iv) the Trustee shall not
have received from the Holders of a majority in principal amount of the
Outstanding Notes a direction inconsistent with such request within such
60 day period; provided, however, that such limitations do not apply to a suit
instituted by the Holder hereof for the enforcement of payment of the principal
of and premium, if any, or any interest on this Note on or after the
respective due dates expressed herein or to require the purchase of its
Notes by the Company upon the occurrence of a Change in Control in
accordance with the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the Guarantor and the rights of the Holders of the Securities of
each series thereunder to be affected under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of not less than
66-2/3% in aggregate principal amount of such Securities then Outstanding of
each series to be affected. The Indenture also contains provisions permitting
the Holders of a percentage of not less than a majority in principal amount of
the Securities of each series thereunder at the time Outstanding, on behalf of
the Holders of all Securities of such series, to waive compliance by the Company
with certain restrictive provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of any Note issued upon the registration of transfer hereof
or in exchange for or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note. Notwithstanding the foregoing, no consent of
Holders shall be required to advance the Stated Maturity of the Notes as
provided herein.
2
<PAGE> 3
No reference to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
any interest on this Note at the times, places and rate, and in the coin
or currency, herein prescribed.
The Notes are issuable only in fully registered form in
denominations of $1,000 and integral multiples in excess thereof. As provided
in the Indenture and subject to certain limitations therein set forth, this
Note is exchangeable for a like aggregate principal amount of Notes
of this series and of like tenor of any authorized denomination, as requested
by the Holder surrendering the same. As provided in the Indenture and subject
to certain limitations therein set forth, the transfer of this Note is
registrable in the Security Register, upon surrender of this Note for
registration of transfer at the office or agency of the Company in any place
where the principal of and premium, if any, and any interest on this Note
are payable or at such other offices or agencies as the Company may designate,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to, the Company and the Security Registrar or any transfer agent
duly executed by the registered owner hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount
and Stated Maturity will be issued to the designated transferee or transferees.
The Notes will be redeemable as a whole or in part, at the option
of the Company at any time, at a redemption price equal to the greater of (i)
100% of their principal amount or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest thereon discounted to
the Redemption Date on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Yield, plus basis
points, plus in each case accrued interest on the principal amount being
redeemed to the Redemption Date.
"Treasury Yield" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term to Stated Maturity of the Notes that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term to Stated Maturity of the Notes. "Independent
Investment Banker" means or, if such
firm is unwilling or unable to select the Comparable Treasury Issue, an
independent investment banking institution of national standing appointed by
the Trustee.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (i) the average of five Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (ii) if the Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such Redemption Date.
"Reference Treasury Dealer" means each of
, and their respective successors;
provided however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"),
the Company shall substitute therefor another Primary Treasury Dealer.
If as a result of any change in or any amendment to the laws,
regulations or published tax rulings of the "applicable taxing jurisdiction"
(as hereinafter defined) affecting taxation, or any change in the official
administration, application or interpretation of such laws, regulations or
published tax rulings either generally or in relation to the Notes, which
change or amendment becomes effective on or after the original issue date of
the Notes or which change in official administration, application or
interpretation shall not have been available to the public prior to such issue
date, it is determined by the Company that (a) the Company would be required to
pay any Additional Amounts pursuant to the Indenture or the terms of the
Notes in respect of interest on the next succeeding Interest Payment Date
and (b) such obligation cannot be avoided by the Company or the Guarantor
taking reasonable measures available to it, the Company may, at its option,
redeem all (but not less than all) the Notes upon not less than 30 nor
more than 60 days' written notice as provided in the Indenture, at a Redemption
Price equal to 100% of the principal amount thereof plus accrued interest to
the date fixed for redemption; provided, however, that (a) no such notice of
redemption may be given earlier than 60 days prior to the earliest date on
which the Company would be obligated to pay such Additional Amounts were a
payment then due in respect of the Notes, and (b) at the time any such
redemption notice is given, such obligation to pay such Additional Amounts must
remain in effect. If (a) the Company shall have on any date (the
3
<PAGE> 4
"Succession Date") consolidated with or merged into, or conveyed or transferred
or leased its properties and assets as an entirety or substantially as an
entirety to, any Successor which is organized under the laws of any
jurisdiction other than the United States of America, any State thereof or the
District of Columbia or the jurisdiction in which the Company is organized, (b)
as result of any change in or any amendment to the laws, regulations or
published tax rulings of such jurisdiction or organization, or of any political
subdivision or taxing authority thereof or therein, affecting taxation, or any
change in the official administration, application or interpretation of such
laws, regulations or published tax rulings either generally or in relation to
the Notes, which change or amendment becomes effective on or after the
Succession Date or which change in official administration, application or
interpretation shall not have been available to the public prior to such
Succession Date and is notified to the Company, such Successor would be
required to pay any Successor Additional Amounts pursuant to the Indenture or
the terms of the Notes in respect of interest on any Notes on the
next succeeding Interest Payment Date and (c) such obligation cannot be avoided
by the Company or such Successor taking reasonable measures available to it,
such Company or Successor may at its option, redeem all (but not less than all)
of the Notes, upon not less than 30 nor more than 60 days' written notice
as provided in the Indenture, at a Redemption Price equal to 100% of the
principal amount thereof plus accrued interest to the date fixed for
redemption; provided however, that (a) no such notice of redemption may be
given earlier than 60 days prior to the earliest date on which a Successor
would be obligated to pay such Successor Additional Amounts were a payment then
due in respect of the Notes, and (b) at the time any such redemption
notice is given, such obligation to pay such Successor Additional Amounts must
remain in effect.
Holders of Notes to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days prior to the Redemption
Date, as provided in the Indenture.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date interest will cease to accrue on the Notes or
portions thereof called for redemption.
All payments of, or in respect of, principal of and any premium and
interest on this Note shall be made without withholding or deduction for,
or on account of, any present or future taxes, duties, levies, assessments or
governmental charges of whatever nature imposed or levied by or on behalf of
the jurisdiction (or any political subdivision or taxing authority thereof or
therein) in which the Company is incorporated or resident (or deemed for tax
purposes to be resident) (the "applicable taxing jurisdiction"), unless such
taxes, duties, levies, assessments or governmental charges are required by the
applicable taxing jurisdiction or any such subdivision or authority to be
withheld or deducted. In that event, the Company will pay by way of additional
interest such additional amounts of, or in respect of, principal of and any
premium and interest ("Additional Amounts") as will result (after deduction of
such taxes, duties, levies, assessments or governmental charges and any
additional taxes, duties, levies, assessments or governmental charges payable
in respect of such Additional Amounts) in the payment to the Holder of this
Note of the amounts which would have been payable in respect of this
Note had no such withholding or deduction been required, except that no
Additional Amounts shall be so payable for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such Holder:
(i) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically
present in, the applicable taxing jurisdiction or otherwise had some
connection with the applicable taxing jurisdiction other than the mere
ownership of this Note;
(ii) presented (if presentation is required) this Note for
payment in the applicable taxing jurisdiction, unless this Note
could not have been presented for payment elsewhere;
(iii) presented (if presentation is required) this Note as the
case may be, more than 30 days after the date on which the payment in
respect of this Note first became due and payable or provided
for, whichever is later, except to the extent that the Holder would
have been entitled to such Additional Amounts; if it had presented
such Note for payment on any days within such period of 30 days;
(iv) directly or indirectly is taken to be an associate of the
Company (as "associate" is defined in Division 16F of the Income Tax
Assessment Act 1936 of the Commonwealth of Australia (the "Tax Act")
(but on the basis that sub paragraphs 159GZC(1)(a)(ii), (1)(b)(i) and
(1)(d)(i) of the Tax Act do not apply)); or
(v) entered into or participated in a scheme to avoid Australian
interest withholding tax, being a scheme which the Company was neither
a party to nor participated in, in respect of which the Australian
Commissioner of Taxation has made a determination that Australian
interest withholding tax is payable in respect of the amount.
4
<PAGE> 5
(b) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of, or in respect of,
principal of or any premium or interest on this Note;
(d) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure to comply by the Holder or the beneficial
owner of this Note with a request of the Company addressed to the Holder
(i) to provide information concerning the nationality, residence or identity of
the Holder or such beneficial owner or (ii) to make any declaration or other
similar claim or satisfy any information or reporting requirement, which, in
the case of (i) or (ii), is required or imposed by a statute, treaty,
regulation or administrative practice of the applicable taxing jurisdiction as
a precondition to exemption from all or part of such tax, assessment or other
governmental charge; or
(e) any combination of items (a), (b), (c) and (d);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or any premium or interest on this Note to any Holder who is
a fiduciary or partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the laws of the
applicable taxing jurisdiction to be included in the income for tax purposes of
a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to such
Additional Amounts had it been the Holder of this Note.
The payment of principal of, or any premium or interest on, or in
respect of, this Note shall be deemed to include the payment of Additional
Amounts provided for in the Indenture or herein to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to the Indenture or this Note.
Subject to the terms and conditions of the Indenture, if any Change in
Control occurs prior to the Stated Maturity of the Notes, the Company
shall, at the option of the Holders thereof, purchase all Notes for which
a Change in Control Purchase Notice shall have been delivered as provided in
the Indenture and not withdrawn, by a date which shall be 35 Business Days
after the occurrence of such Change in Control, at a Change in Control Purchase
Price equal to 100% of the principal amount thereof plus accrued interest to
the Change in Control Purchase Date, which Change in Control Purchase Price
shall be paid in cash.
Holders have the right to withdraw any Change in Control Purchase
Notice by delivering to the paying agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
If cash sufficient to pay the Change in Control Purchase Price of all
Notes or portions thereof to be purchased on the Change in Control
Purchase Date is deposited with the Trustee on the Change in Control Purchase
Date, interest shall cease to accrue on such Notes (or portions thereof)
and on and after the Change in Control Purchase Date the Holders thereof shall
have no other rights as such (other than the right to receive the Change in
Control Purchase Price upon surrender of such Notes).
Subject to the terms of the Indenture, prior to due presentment of
this Note for registration of transfer, the Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note is overdue, and neither the
Company, the Guarantor, the Trustee nor any such agent shall be affected by
notice to the contrary.
No service charge shall be made for any registration of transfer or
exchange of this Note, but, subject to certain limitations set forth in
the Indenture, the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
This Note shall not be valid or become obligatory for any purpose
until the Trustee's Certificate of Authentication hereon shall have been
executed by the Trustee.
5
<PAGE> 6
IN WITNESS WHEREOF, APACHE FINANCE PTY LTD has caused this instrument
to be duly executed under its corporate seal.
APACHE FINANCE PTY LTD
[SEAL] BY
----------------------------
Name:
Title:
Attest:
BY
----------------------------
Name:
Title:
Date:
6
<PAGE> 7
GUARANTEE
For value received, Apache Corporation, a corporation organized under the
laws of the State of Delaware (herein called the "Guarantor," which term
includes any successor corporation under the Indenture referred to in the
Security upon which this Guarantee is endorsed), hereby irrevocably and
unconditionally guarantees to the Holder of the Security upon which this
Guarantee is endorsed and to the Trustee on behalf of the Trustee and such
Holder the due and punctual payment of the principal of and any premium and
interest on, and any Additional Amounts with respect to, such Security, and any
other amount due and payable pursuant to the terms of the Indenture or payments
referred to therein, when and as the same shall become due and payable, whether
at the Stated Maturity, by declaration of acceleration, call for redemption or
repurchase or otherwise, according to the terms of such Security and of the
Indenture referred to therein. In case of the failure of Apache Finance Pty
Ltd, a proprietary company with limited liability organized under the laws of
the Australian Capital Territory, Australia (herein called the "Company," which
term includes any successor corporation under such Indenture), punctually to
make any such payment of principal or any premium or interest on, or any
Additional Amounts with respect to such Security, the Guarantor hereby agrees
to cause any such payment to be made punctually when and as the same shall
become due and payable, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or repurchase or otherwise, and as if such
payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as if
it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any
failure to enforce the provisions of such Security or such Indenture, or any
waiver, modification or indulgence granted to the Company with respect thereto,
by the Holder of such Security or the Trustee or any other circumstance which
may otherwise constitute a legal or equitable discharge of a surety or
guarantor. The Guarantor hereby waives the benefits of division and discussion,
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger, insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by strict and
complete performance of the obligations contained in such Security and this
Guarantee. The Guarantor hereby agrees that, in the event of a default in
payment of principal or any premium or interest on, or any Additional Amounts
with respect to such Security, or default in any payment referred to therein,
legal proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Security, on the terms and conditions set forth in the
Indenture, directly against the Guarantor to enforce this Guarantee without
first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor on account of such Security pursuant to the
provisions of this Guarantee or the Indenture; provided, however, that the
Guarantor shall not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the principal of, and any
premium and interest on, and any Additional Amounts required with respect to
Securities issued under such Indenture shall have been paid in full.
No reference herein to such Indenture and no provision of this Guarantee
or of such Indenture shall alter or impair the guarantee of the Guarantor,
which is absolute and unconditional, of the due and punctual payment of
principal, premium (if any), and interest on and any Additional Amounts with
respect to the Security upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until the
certificate of authentication of the Security upon which this Guarantee is
endorsed shall have been manually executed by or on behalf of the Trustee under
such Indenture.
All terms used in this Guarantee which are defined in such Indenture shall
have the meanings assigned to them in such Indenture.
This Guarantee shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be governed by and construed in
accordance with the laws of the State of New York.
This Guarantee is an unsecured obligation of the Guarantor, and ranks pari
passu with all other unsubordinated indebtedness of the Guarantor.
7
<PAGE> 8
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal and dated the date on the face hereof.
APACHE CORPORATION
[SEAL] BY
----------------------------
Name:
Title:
Attest:
BY
----------------------------
Name:
Title:
Date:
8
<PAGE> 9
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
Please insert Social Security or other identifying number of assignee
- --------------------------------------------------------------------------------
(please print or type name and address of assignee)
the within Security and all rights thereunder and does hereby irrevocably
constitute and appoint the aforesaid assignee attorney to transfer the within
Security on the books kept for registration thereof, with full power of
substitution in the premises.
Dated:
---------------------------- ----------------------------
In the presence of:
- --------------------------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Security in every particular, without
alteration or enlargement or any change whatever. When assignment is made by a
guardian, trustee, executor or administrator, an officer of a corporation, or
anyone in a representative capacity, proof of his authority to act must
accompany the Security. The signature must be guaranteed by an Institution
which is a member of one of the following recognized signature Guarantee
Programs: (i) The Securities Transfer Agent Medallion Program (STAMP); (ii)
The New York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee program acceptable to
the Trustee.
9
<PAGE> 1
EXHIBIT 5.1
[APACHE CORPORATION LETTERHEAD]
November 21, 1997
Apache Corporation
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
Ladies and Gentlemen:
I am General Counsel to Apache Corporation, a Delaware corporation
(the "Company"), and am rendering this opinion in my capacity as such in
connection with the proposed offering from time to time of up to an aggregate
$300,000,000 principal amount of the senior unsecured debt securities (the "Debt
Securities") of Apache Finance Pty Ltd, a proprietary company with limited
liability organized under the laws of the Australian Capital Territory,
Australia (the "Issuer"), and a wholly-owned indirect subsidiary of the Company
described in the registration statement on Form S-3 (the "Registration
Statement") of the Company and the Issuer. The Debt Securities are to be issued
in one or more series pursuant to an Indenture among the Company, the Issuer and
The Chase Manhattan Bank, Trustee. The Debt Securities are to be irrevocably
and unconditionally guaranteed (the "Guarantees") by the Company. The Debt
Securities are to be offered upon the terms and subject to the conditions set
forth in one or more underwriting agreements by and between the Company, the
Issuer and the persons named as underwriters therein (the "Underwriting
Agreement").
In connection therewith, I have examined the Registration Statement
covering the Debt Securities which is to be filed with the Securities and
Exchange Commission, originals or copies certified or otherwise identified to my
satisfaction of the charter documents of the Issuer, the Restated Certificate of
Incorporation and the Bylaws of the Company, each as amended to date, the
corporate proceedings with respect to the offering of Debt Securities and such
other documents and instruments as I have deemed necessary or appropriate for
the expression of the opinions contained herein.
I have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to me as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to me as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to me as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that I have examined.
<PAGE> 2
Apache Corporation
November 21, 1997
Page 2 of 2
Based on the foregoing, and having regard for such legal
considerations as I have deemed relevant, I am of the opinion that (a) the Debt
Securities, when duly authorized and duly executed by the proper officers of the
Issuer, authenticated and delivered by the Trustee in accordance with the
Indenture, and issued and sold pursuant to the terms of the Underwriting
Agreement against payment of the consideration therefor, will constitute valid
and legally binding obligations of the Issuer, enforceable in accordance with
their terms, and (b) the Guarantees, when duly authorized and duly executed
by the proper officers of the Company, the Debt Securities to which such
Guarantees relate have been authenticated and delivered by the Trustee in
accordance with the Indenture and issued pursuant to the terms of the
Underwriting Agreement against payment of the consideration therefor, the
Guarantees will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms. The opinions expressed in the
preceding sentence regarding the enforceability of the Debt Securities and the
Guarantees are subject to the exception that the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally or by
general equity principles, and except further as enforcement thereof may be
limited by (1) requirements that a claim with respect to any Debt Securities
denominated other than in U.S. Dollars (or a foreign currency or composite
currency judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable law or
(2) governmental authority to limit, delay or prohibit the making of payments
outside the United States.
With your consent, I have relied solely on the opinion of Arthur
Robinson & Hedderwicks, filed as Exhibit 5.2 to the Registration Statement, as
to matters governed by the laws of the Australian Capital Territory, Australia.
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the prospectus included as a part of the Registration Statement.
In giving such consent, I do not admit that I am in the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ ZURAB S. KOBIASHVILI
<PAGE> 1
EXHIBIT 5.2
[ARTHUR ROBINSON & HEDDERWICKS LETTERHEAD]
21 November, 1997
Apache Corporation
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
Ladies & Gentlemen:
FORM S-3 REGISTRATION STATEMENT
We have acted as counsel to Apache Corporation (the Company) in connection with
the preparation of a Registration Statement on Form S-3 (Registration No.
333-39973, 333-39973-01) (the Registration Statement) under the Securities Act
of 1933, as amended (the Securities Act), relating to the issuance of an
aggregate of up to $300,000,000 of debt securities (the Debt Securities) of
Apache Finance Pty Ltd, a proprietary company with limited liability organized
under the laws of the Australian Capital Territory, Australia (the Issuer)
pursuant to an indenture in the form filed as Exhibit 4.1 to the Registration
Statement (the Indenture) among the Chase Manhattan Bank, as Trustee, the
Company and the Issuer. Debt Securities issued by the Issuer will be guaranteed
by the Company pursuant to a guarantee provided for under the Indenture (the
Guarantee).
We have examined the Registration Statement covering the Debt Securities which
is filed with the Securities and Exchange Commission, the corporate proceedings
with respect to the offering of the Debt Securities and such other documents
and instruments as we have deemed necessary or appropriate for the expression
of the opinion contained herein.
For purposes of giving this opinion, we have assumed the following:
(a) the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as copies;
(b) such documents are within the capacity and powers of, and have been
validly authorised, executed and delivered by and are binding on, the
parties to them other than the Issuer;
(c) insofar as any obligation under any document is to be performed in any
jurisdiction other than the Commonwealth of Australia, its performance
will not be illegal or unenforceable under the law of that
jurisdiction;
<PAGE> 2
(d) each such document constitutes or will on execution constitute legal,
valid and binding obligations of the parties under the laws of the
State of New York enforceable in competent courts of that
jurisdiction;
(e) formalities for execution by each party other than the Issuer required
by the law of execution of the relevant document have been or will be
complied with.
Based upon the foregoing and subject to the limitations set forth below, it is
our opinion that, under current law, the Issuer has the corporate power and
authority to issue the Debt Securities; and the Debt Securities have been duly
authorised by the Issuer.
Our opinion herein is limited solely to the laws applying in the Commonwealth
of Australia and we express no opinion herein concerning the laws of any other
jurisdiction.
Our opinion herein is subject to the effect of any applicable bankruptcy,
insolvency, fraudulent conveyance, moratorium, reorganisation or similar law
affecting creditors' rights or debtors' obligations generally and to general
equity principles, including (without limitation) concepts of materiality,
reasonableness, good faith and fair dealing, and other similar doctrines
affecting the legality and binding nature of obligation or agreements
generally.
Our opinion herein is rendered solely for your benefit in connection with the
transaction contemplated herein. Our opinion herein may not be used or relied
on by any other person, nor may this letter or any copies thereof be furnished
to a third party, filed with a government agency, quoted, cited or otherwise
referred to without our prior written consent, except that Z.S. Kobiashvili,
Vice President and General Counsel of the Company, may rely on this letter and
the opinion expressed herein as if he were named as an addressee of this
letter.
We hereby consent to the filing of this opinion letter as Exhibit 5.2 to the
Registration Statement and to the reference to our name under the caption
"Legal Matters" in the prospectus forming part of the Registration Statement.
In giving such consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act.
Yours faithfully
/s/ Arthur Robinson & Hedderwicks
<PAGE> 1
EXHIBIT 8.1
[WOODWARD, HALL & PRIMM LETTERHEAD]
November 21, 1997
Apache Corporation
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Apache Corporation, a Delaware
corporation (the "Company"), and Apache Finance Pty Ltd, a proprietary company
with limited liability organized under the laws of the Australian Capital
Territory, Australia (the "Issuer"), in connection with the Company's and the
Issuer's Registration Statement on Form S-3 (the "Registration Statement")
relating to the registration under the Securities Act of 1933, as amended, of
up to an aggregate $300,000,000 principal amount of the Issuer's debt securities
(the "Debt Securities") and the guarantees (the "Guarantees") of the Debt
Securities by the Company. The Debt Securities are to be issued from time to
time in one or more series pursuant to an Indenture among the Issuer, the
Company (as Guarantor) and The Chase Manhattan Bank, as trustee. The terms of
the Debt Securities and Guarantees, which are set forth in the Registration
Statement, are incorporated herein by reference.
Based upon the terms of the Debt Securities and Guarantees, as set
forth in the Registration Statement, we hereby confirm that the discussion set
forth in the Registration Statement under the caption "Certain Tax
Considerations - United States Federal Income Tax Considerations," except as
otherwise stated therein, constitutes our opinion as to the material United
States federal income tax considerations of the acquisition, holding and
disposition of the Debt Securities.
The opinions expressed in the preceding paragraph are limited to the
tax matters specifically discussed under the caption "Certain Tax
Considerations - United States Federal Income Tax Considerations" in the
Registration Statement, and we have not been asked to address nor have we
addressed, any other tax considerations relating to the Debt Securities,
including the discussion set
<PAGE> 2
November 21, 1997
Page 2
forth in the Registration Statement under the caption "Certain Tax
Considerations - Australian Tax Considerations," for which we understand you
are relying on the opinion of Arthur Robinson & Hedderwicks.
Pursuant to the provisions of Rule 436(a) promulgated by the
Securities and Exchange Commission under the 1933 Act, we hereby consent to the
filing of this letter as an exhibit to the Registration Statement and to the
reference to us under the caption "Certain Tax Considerations - United States
Federal Income Tax Considerations" and "Legal Matters" in the related
prospectus included therein.
Very truly yours,
/s/ WOODARD, HALL & PRIMM, P.C.
<PAGE> 1
EXHIBIT 8.2
[ARTHUR ROBINSON & HEDDERWICKS LETTERHEAD]
21, November, 1997
Apache Corporation
Suite 100
2000 Post Oak Boulevard
Houston, Texas 77056-4400
USA
Apache Finance Pty Ltd
Level 3
256 St Georges Terrace
Perth WA 6000
Dear Sirs:
APACHE FINANCE PTY LTD - GUARANTEED DEBT SECURITIES
We have acted as Australian Tax Counsel to Apache Corporation (APACHE)
and Apache Finance Pty Ltd (the COMPANY) in connection with the offering by the
Company of up to US $300,000,000 of debt securities (the DEBT SECURITIES).
We hereby confirm that the statements set forth under the heading
CERTAIN TAX CONSIDERATIONS - AUSTRALIAN TAXATION CONSIDERATIONS and DESCRIPTION
OF DEBT SECURITIES AND GUARANTEES - PAYMENT OF ADDITIONAL AMOUNTS in the
registration statement, relating to the Debt Securities (the REGISTRATION
STATEMENT) constitutes our opinion as to the principal Australian income tax
consequences of the acquisition, ownership and disposition of the Debt
Securities.
Our opinion is limited to matters of Australian income tax law and is
based upon Australian income tax law as at the date of this letter and the
description of the Debt Securities contained in the Registration Statement. We
express no opinion as to any other matters.
We hereby consent to the inclusion of this opinion as an exhibit to
the Registration Statement and to the reference to us under the heading CERTAIN
TAX CONSIDERATIONS - AUSTRALIAN TAXATION CONSIDERATIONS in the Registration
Statement. In giving this consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Yours faithfully,
/s/ ARTHUR ROBINSON & HEDDERWICKS
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 28, 1997
on the audited consolidated financial statements of Apache Corporation and
subsidiaries included in the Apache Corporation Annual Report on Form 10-K for
the year ended December 31, 1996, and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Houston, Texas
November 21, 1997
