<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1999
REGISTRATION NO. 333-90147
REGISTRATION NO. 333-90147-01
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
APACHE CORPORATION APACHE FINANCE CANADA CORPORATION
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its charter)
</TABLE>
<TABLE>
<S> <C>
DELAWARE NOVA SCOTIA
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization)
</TABLE>
<TABLE>
<S> <C>
NO. 41-0747868 TO BE APPLIED FOR
(I.R.S. Employer Identification Number) (I.R.S. Employer Identification Number)
ONE POST OAK CENTRAL SUITE 1000
2000 POST OAK BOULEVARD, SUITE 100 700-9TH AVE. S.W.
HOUSTON, TEXAS 77056-4400 CALGARY, ALBERTA
(713) 296-6000 CANADA T2P 3V4
(Address, including zip code, and (403) 261-1200
telephone number, including area code, of (Address, including zip code, and
registrant's executive offices) telephone number, including area code, of
registrant's executive offices)
</TABLE>
Z. S. KOBIASHVILI
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(713) 296-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
<TABLE>
<S> <C>
RALPH K. MILLER, JR. CRAIG E. CHAPMAN
CHAMBERLAIN, HRDLICKA, WHITE, BROWN & WOOD LLP
WILLIAMS & MARTIN ONE WORLD TRADE CENTER
1200 SMITH STREET, SUITE 1400 NEW YORK, NEW YORK 10048-0557
HOUSTON, TEXAS 77002-4310
</TABLE>
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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, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act of 1933 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 of 1933, check the following box and list the
Securities Act of 1933 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. [ ]
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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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER FOR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 12, 1999
PROSPECTUS
[APACHE LOGO]
$400,000,000
APACHE FINANCE CANADA CORPORATION
DEBT SECURITIES
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
APACHE CORPORATION
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Apache Finance Canada Corporation may offer and sell, from time to
time, debt securities, in one or more series, consisting of notes, debentures or
other evidences of indebtedness. The aggregate initial offering price of all of
the debt securities will not exceed $400,000,000 or, if applicable, an
equivalent amount in any other currency. The specific terms of the debt
securities will be provided in supplements to this prospectus. You should read
this prospectus and any prospectus supplement carefully before you invest. The
accompanying prospectus supplement will specify the terms of the debt
securities.
---------------------
The debt securities will be irrevocably and unconditionally guaranteed by
Apache Corporation.
---------------------
Apache Finance Canada Corporation may sell the debt securities to or
through underwriters, and also to other purchasers or through agents. The
accompanying prospectus supplement will specify the names of these underwriters
or agents.
---------------------
Neither the Securities and Exchange Commission nor any other regulatory
body has approved or disapproved of these securities or passed upon the accuracy
or adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
---------------------
This prospectus may not be used to sell debt securities unless it is
accompanied by a prospectus supplement.
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Prospectus dated , 1999.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
About This Prospectus....................................... 3
Where You Can Find More Information......................... 3
Cautionary Statements Regarding Forward-Looking
Statements................................................ 4
Apache Corporation.......................................... 5
Apache Finance.............................................. 5
Ratios of Earnings to Fixed Charges......................... 5
Use of Proceeds............................................. 6
The Securities We and Apache Finance May Offer.............. 6
Description of Securities................................... 6
Book-Entry Securities....................................... 24
Certain Income Tax Considerations........................... 26
Plan of Distribution........................................ 30
Legal Matters............................................... 31
Experts..................................................... 31
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission utilizing a "shelf" registration process. In
this prospectus, we will refer to the debt securities and guarantees
collectively as "securities." The total dollar amount of all debt securities
that Apache Finance may issue under this prospectus will not exceed
$400,000,000. This prospectus provides you with a general description of the
securities we and Apache Finance may offer. Each time we and Apache Finance
offer to sell securities, we and Apache Finance will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus and any prospectus
supplement, together with additional information described under the heading
"Where You Can Find More Information."
In this prospectus, references to "Apache," "we," "us" and "our" mean
Apache Corporation, while references to "Apache Finance" mean Apache Finance
Canada Corporation.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our Securities and
Exchange Commission filings are available to the public over the Internet at the
Securities and Exchange Commission's web site at http://www.sec.gov. You may
also read and copy any document we file at the Securities and Exchange
Commission's public reference rooms located at:
- 450 Fifth Street, N.W.
Washington, D.C. 20549;
- 7 World Trade Center
New York, New York 10048; and
- Citicorp Center
500 West Madison Street
Chicago, Illinois 60661.
Please call the Securities and Exchange Commission at 1-800-SEC-0330 for
further information on the public reference rooms and their copy charges.
Our common stock has been listed and traded on the New York Stock Exchange
since 1969 and the Chicago Stock Exchange since 1960. Accordingly, you may
inspect the information we file with the Securities and Exchange Commission at
the New York Stock Exchange, 20 Broad Street, New York, New York 10005, and at
the Chicago Stock Exchange, One Financial Place, 440 S. LaSalle Street, Chicago,
Illinois 60605-1070. For more information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus.
Information that we file later with the Securities and Exchange Commission will
automatically update and supersede this information. We incorporate by reference
the documents listed below and any future filings made with the Securities and
Exchange Commission under Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, until we sell all of the securities:
- our Annual Report on Form 10-K for the fiscal year ended December 31,
1998;
- our Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999
and June 30, 1999; and
- our Current Reports on Form 8-K dated March 2, 1999 (as amended by
Amendment No. 1 on Form 8-K/A filed on March 5, 1999), April 29, 1999 (as
amended by Amendment No. 1 on Form 8-K/A filed on May 12, 1999 and
Amendment No. 2 on Form 8-K/A filed on May 24,
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1999), May 18, 1999 (as amended by Amendment No. 1 on Form 8-K/A filed on
July 30, 1999), June 22, 1999 and October 5, 1999.
Each of these documents is available from the Securities and Exchange
Commission's web site and public reference rooms described above. You may also
request a copy of these filings, excluding exhibits, at no cost by writing or
telephoning Cheri L. Peper, Corporate Secretary, at our principal executive
office, which is:
Apache Corporation
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
(713) 296-6000
Our World Wide Web address is http://www.apachecorp.com. The information on
our website is not incorporated by reference into this prospectus. You should
rely only on the information incorporated by reference or provided in this
prospectus or any prospectus supplement. We have not authorized anyone to
provide you with different information.
On behalf of Apache Finance, we will apply to the Securities Exchange
Commission for an order exempting Apache Finance from the reporting requirements
of the Securities Exchange Act of 1934. We do not intend to include in our
consolidated financial statements any separate financial information regarding
Apache Finance. Also, in view of our guarantees, Apache Finance does not intend
to furnish holders of the debt securities with separate financial statements or
other reports.
We are not making an offer of the securities covered by this prospectus in
any state where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement or in any other
document incorporated by reference in this prospectus is accurate as of any date
other than the date on the front of those documents.
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
prospectus contain "forward-looking statements" within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. These statements are based on our current expectations, estimates and
projections. Therefore, they could ultimately prove to be inaccurate. Our plans
for capital and exploratory spending and for cost and expense reduction may
change if business conditions, such as energy prices and world economic
conditions, change. Factors that could affect our ability to be Year 2000
compliant by the end of 1999 include: the failure of our customers and
suppliers, government entities and others to achieve compliance and the
inaccuracy of any certifications received from them; our inability to identify
and remediate every possible problem; and a shortage of necessary programmers,
hardware and software. Other factors that may have a direct bearing on our
results of operations and financial condition are:
- competitive practices in the industries in which we compete;
- fluctuations in oil and gas prices that have not been properly hedged or
that are inconsistent with our open position in our marketing activities;
- operational and systems risks;
- environmental liabilities that are not covered by indemnity or insurance;
- general economic and capital market conditions, including fluctuations in
interest rates; and
- the impact of current and future laws and governmental regulations
(particularly environmental regulations) affecting the energy industry in
general and Apache's operations in particular.
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APACHE CORPORATION
Apache Corporation is a Delaware corporation formed in 1954. We are an
independent energy company that explores for, develops and produces natural gas,
crude oil and natural gas liquids. In North America, our exploration and
production interests are focused on the Gulf of Mexico, the Anadarko Basin, the
Permian Basin, the Gulf Coast and the Western Sedimentary Basin of Canada.
Outside of North America, we have exploration and production interests offshore
Western Australia and in Egypt and exploration interests in Poland and offshore
The People's Republic of China.
We hold interests in many of our U.S., Canadian and international
properties through operating subsidiaries, such as Apache Canada Ltd., DEK
Energy Company, which was formerly known as DEKALB Energy Company, Apache Energy
Limited, which was formerly known as Hadson Energy Limited, Apache
International, Inc., and Apache Overseas, Inc. The properties referred to in
this prospectus, in any prospectus supplement or in any other document
incorporated by reference in this prospectus may be held by our subsidiaries. We
treat all operations as one line of business.
APACHE FINANCE
Apache Finance is an unlimited liability company organized in August 1999
under the laws of Nova Scotia, Canada. Apache Finance is our indirect
wholly-owned subsidiary. We intend to use Apache Finance to issue debt
securities guaranteed by us. We intend to use the proceeds from these debt
securities primarily to finance and invest in our Canadian operations and
entities.
RATIOS OF EARNINGS TO FIXED CHARGES
Our ratios of earnings to fixed charges were as follows for the periods
indicated in the table below. Our 1998 earnings were inadequate to cover fixed
charges and dividends as described below.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
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1999 1998 1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C> <C>
1.44 1.36 -- 2.93 2.72 1.15 2.34
</TABLE>
Our ratios of earnings to fixed charges were computed based on:
- "earnings," which consist of consolidated income or loss from continuing
operations plus income taxes and fixed charges, except capitalized
interest; and
- "fixed charges," which consist of consolidated interest on indebtedness,
including capitalized interest, amortization of debt discount and
expense, and the estimated portion of rental expense attributable to
interest.
Due to the $243.2 million non-cash write-down of the carrying value of our
U.S. oil and gas properties for the year ended December 31, 1998, our 1998
earnings were inadequate to cover fixed charges by $236.8 million.
On May 17, 1995, Apache acquired DEKALB Energy Company, which is now known
as DEK Energy Company, through a merger which resulted in DEKALB becoming a
wholly-owned subsidiary of Apache. The merger was accounted for as a "pooling of
interests." As a result, our financial information for all preceding periods was
restated.
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USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we
expect to use the net proceeds from the sale of the debt securities for general
corporate purposes, which may include, among other things:
- financing and investing in our Canadian operations and entities;
- the repayment of outstanding indebtedness;
- working capital;
- capital expenditures; and
- acquisitions.
The precise amount and timing of the application of these proceeds will
depend upon our funding requirements and the availability and cost of other
funds.
THE SECURITIES WE AND APACHE FINANCE MAY OFFER
The descriptions of the securities contained in this prospectus, together
with the applicable prospectus supplements, summarize all the material terms and
provisions of the various types of securities that we and Apache Finance may
offer. The particular terms of the securities offered by any prospectus
supplement will be described in that prospectus supplement. If indicated in the
applicable prospectus supplement, the terms of the securities may differ from
the terms summarized below. The prospectus supplement will also contain
information, where applicable, about material U.S. and Canadian federal income
tax considerations relating to the securities, and the securities exchange, if
any, on which the securities will be listed.
We and Apache Finance may sell from time to time, in one or more offerings,
debt securities and the related guarantees.
If Apache Finance issues debt securities at a discount from their original
stated principal amount, then, for purposes of calculating the total dollar
amount of all debt securities issued under this prospectus, we and Apache
Finance will treat the initial offering price of the debt securities as the
total original principal amount of the debt securities.
This prospectus may not be used to sell securities unless it is accompanied
by a prospectus supplement.
DESCRIPTION OF SECURITIES
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the securities
that we and Apache Finance may offer under this prospectus and the related trust
indenture. The indenture under which we and Apache Finance will issue securities
contains additional important terms and provisions and is or will be filed as an
exhibit to the registration statement that includes this prospectus.
This summary of the indenture and the securities relates to terms and
conditions applicable to the securities generally. The particular terms of any
series of securities will be summarized in the applicable prospectus supplement.
If indicated in the prospectus supplement, the terms of any series may differ
from the terms summarized below.
Unless otherwise specified in the applicable prospectus supplement, we and
Apache Finance will issue the securities under an indenture entered into among
us, Apache Finance and The Chase Manhattan Bank, as trustee. Apache Finance may
only offer up to $400,000,000 of debt securities under this prospectus. However,
the indenture does not limit the amount of securities we and Apache Finance may
issue under the indenture and provides that additional securities of any series
may be issued up to the aggregate principal amount that we and Apache Finance
authorize from time to time. We and Apache
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Finance may also issue securities under the indenture in transactions exempt
from the registration requirements of the Securities Act of 1933. Those
securities will not be considered in determining the aggregate amount of
securities issued under this prospectus.
Unless otherwise specified in the applicable prospectus supplement, we and
Apache Finance will issue the debt securities in denominations of $1,000 or
integral multiples of $1,000.
Principal and any premium and any interest will be payable, and the debt
securities will be transferable, at the corporate trust office of the
appropriate trustee, unless specified otherwise in the accompanying prospectus
supplement. At Apache Finance's option, however, payment of interest may be made
by check mailed to the registered holders of the debt securities at their
registered addresses.
Unless the applicable prospectus supplement specifies otherwise, the
covenants contained in the indenture and the securities will not provide special
protection to holders of securities if we or Apache Finance enter into a highly
leveraged transaction, recapitalization or restructuring.
RANKING
Unless otherwise specified in the applicable prospectus supplement:
- the debt securities issued by Apache Finance will be unsecured
obligations of Apache Finance and will rank equally with all other
unsecured and unsubordinated indebtedness of Apache Finance; and
- the guarantees will be unsecured obligations of Apache and will rank
equally with all other unsecured and unsubordinated indebtedness of
Apache.
Dividend and other distributions to us from our 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 our creditors to participate in the assets of any
subsidiary upon that subsidiary's liquidation or recapitalization will be
subject to the prior claims of the subsidiary's creditors, except to the extent
that we may ourself be a creditor with recognized claims against the subsidiary.
The claims of holders under the guarantees will be effectively subordinated to
the claims of creditors of our subsidiaries other than, in the case of the debt
securities, Apache Finance. The indenture does not restrict the amount of
indebtedness that we, Apache Finance or our other subsidiaries may incur.
GENERAL
To the extent not described in this prospectus, the prospectus supplement
relating to the particular series of securities being offered will specify the
amounts, prices and terms of those securities. These terms may include:
- the designation, aggregate principal amount and authorized denominations
of the debt securities;
- the date or dates on which the debt securities will mature;
- the percentage of the principal amount at which the debt securities will
be issued;
- the date on which the principal of the debt securities will be payable;
- whether the debt securities will be issued as registered securities,
bearer securities or a combination of the two;
- whether the debt securities will be issued in the form of one or more
global securities and whether the global securities will be issued in a
temporary global form or permanent global form;
- the currency or currencies or units of two or more currencies in which
debt securities are denominated, for which they may be purchased, and in
which principal and any premium and interest is payable;
- if the currency or currencies or currency unit or units for which debt
securities may be purchased or in which principal and any premium
interest may be paid is at Apache Finance's election or at the election
of a purchaser, the manner in which an election may be made and its
terms;
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- the annual rate or rates, which may be fixed or variable, or the method
of determining the rate or rates at which the debt securities will bear
interest;
- the date or dates from which any interest will accrue and the date or
dates on which interest will be payable;
- a description of any provisions providing for redemption, exchange or
conversion of the debt securities at Apache Finance's option or a
holder's option and the terms and provisions of the redemption, exchange
or conversion;
- information with respect to book-entry procedures relating to global debt
securities;
- any redemption or sinking fund terms;
- whether and under what circumstances Apache Finance will pay "additional
amounts," as defined in the indenture, in respect of any tax, assessment
or governmental charge and, if so, whether and on what terms Apache
Finance will have the option to redeem the debt securities rather than
pay any additional amounts. The term "interest," as used in this
prospectus, includes any additional amounts;
- any events of default or covenants of Apache or Apache Finance with
respect to the debt securities of a certain series that are different
from those described in this prospectus;
- if either or both of section 402(2) of the indenture relating to
defeasance or section 402(3) of the indenture relating to covenant
defeasance is not applicable to the debt securities, or if any covenants
in addition to those specified in section 402(3) of the indenture shall
be subject to covenant defeasance;
- any deletions from, or modifications or additions to, the provisions of
the indenture relating to satisfaction and discharge in respect of the
debt securities;
- any index or other method used to determine the amount of payments of
principal of, and any premium and interest on, the debt securities; and
- any other specific terms of the debt securities.
Apache Finance is not obligated to issue all debt securities of any one
series at the same time. The debt securities of any one series may 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 any premium or interest on, any series
of debt securities is payable in foreign currencies or foreign currency units,
we will describe the restrictions, elections, tax consequences, specific terms
and other information with respect to those debt securities and the foreign
currencies or foreign currency units in the applicable prospectus supplement.
Other than as described below under "The Indenture Limits Our and Apache
Finance's Ability to Incur Liens," "The Indenture Limits Our and Apache
Finance's Ability to Engage in Sale/Leaseback Transactions" and "Apache Finance
is Obligated to Purchase Debt Securities on a Change in Control," the indenture
does not limit our or Apache Finance's ability to incur indebtedness or afford
holders of securities protection if our credit quality declines or if we are
involved in a takeover, recapitalization or highly leveraged or similar
transaction. The prospectus supplement relating to the particular series of
securities, to the extent not otherwise described in this prospectus, will
include any information with respect to any deletions from, modifications of or
additions to the events of default described below and contained in the
indenture, including any addition of a covenant or other provision providing
event risk or similar protection.
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GUARANTEES
We will irrevocably and unconditionally guarantee to each holder of a debt
security issued by Apache Finance and authenticated and delivered by the trustee
the due and punctual payment of the principal of, and any premium and interest
on, the debt security, when and as it becomes 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. We will
(a) agree that, if an event of default occurs under the debt securities, our
obligations under the guarantees will be as if we had issued the debt
securities, 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) waive our right to require the trustee or the holders
to pursue or exhaust their legal or equitable remedies against Apache Finance
before exercising their rights under the guarantees.
INTEREST RATES AND DISCOUNTS
The debt securities will earn interest at a fixed or floating rate or rates
for the period or periods of time specified in the applicable prospectus
supplement. Unless otherwise specified in the applicable prospectus supplement,
the debt securities will bear interest on the basis of a 360-day year consisting
of twelve 30-day months.
Apache Finance may sell debt securities 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. United States and Canadian federal
income tax consequences and special considerations that apply to any series will
be described, to the extent not described in this prospectus, in the applicable
prospectus supplement.
EXCHANGE, REGISTRATION AND TRANSFER
Registered securities of any series that are not global securities will be
exchangeable for other registered securities of the same series and of like
aggregate principal amount and tenor in different authorized denominations. In
addition, if debt securities of any series are issuable as both registered
securities and bearer securities, the holder may choose, upon written request,
and subject to the terms of the indenture, to exchange bearer securities and the
appropriate related coupons of that series into registered securities of the
same series of any authorized denominations and of like aggregate principal
amount and tenor. Bearer securities with attached coupons surrendered in
exchange for registered securities between a regular record date or a special
record date and the relevant date for interest payment shall be surrendered
without the coupon relating to the interest payment date. Interest will not be
payable with respect to the registered security issued in exchange for that
bearer security. That interest will be payable only to the holder of the coupon
when due in accordance with the terms of the indenture. Bearer securities will
not be issued in exchange for registered securities.
You may present registered securities for registration of transfer,
together with a duly executed form of transfer, at the office of the security
registrar or at the office of any transfer agent designated by Apache Finance
for that purpose with respect to any series of debt securities and referred to
in the applicable prospectus supplement. This may be done without service charge
but upon payment of any taxes and other governmental charges as described in the
indenture. The security registrar or the transfer agent will effect the transfer
or exchange upon being satisfied with the documents of title and identity of the
person making the request. Apache Finance will appoint the trustee as security
registrar for the indenture. If a prospectus supplement refers to any transfer
agents initially designated by Apache Finance with respect to any series of debt
securities in addition to the security registrar, Apache Finance may at any time
rescind the designation of any of those transfer agents or approve a change in
the location through which any of those transfer agents acts. However, if debt
securities of a series are issuable solely as registered securities, Apache
Finance will be required to maintain a transfer agent in each place of payment
for that series, and if debt securities of a series are issuable as bearer
securities, Apache Finance will be required to maintain a transfer agent in a
place of payment for that series located in Europe in addition to the security
registrar.
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Apache Finance may at any time designate additional transfer agents with respect
to any series of debt securities.
If a redemption occurs, neither we nor Apache Finance will be required to:
- issue, register the transfer of or exchange debt securities of any series
during a period beginning at the opening of business 15 days before any
selection of debt securities of that series to be redeemed and ending at
the close of business on the day of mailing of the relevant notice of
redemption; or
- register the transfer of or exchange any registered security, or portion
thereof, called for redemption, except the unredeemed portion of any
registered security being redeemed in part.
PAYMENT AND PAYING AGENTS
Unless specified otherwise in the applicable prospectus supplement, payment
of principal of, and any premium and interest on, bearer securities will be
payable in accordance with any applicable laws and regulations, at the offices
of those paying agents outside the United States that we or Apache Finance may
designate at various times. Apache Finance will make interest payments on bearer
securities and the attached coupons on any interest payment date only against
surrender of the coupon relating to that interest payment date. No payment with
respect to any bearer security will be made at any of our or Apache Finance's
offices or agencies in the United States by check mailed to any U.S. address or
by transfer to an account maintained with a bank located in the United States.
However, if, but only if, payment in U.S. dollars of the full amount of
principal of, and any premium and interest on, bearer securities denominated and
payable in U.S. dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions, then those payments will be made at the office of our and Apache
Finance's paying agent in the Borough of Manhattan, The City of New York.
Unless otherwise specified in the applicable prospectus supplement, payment
of principal of, and any premium and interest on, registered securities will be
made at the office of the paying agent or paying agents that Apache Finance
designates at various times. However, at Apache Finance's option, it may make
interest payments by check mailed to the address, as it appears in the security
register, of the person entitled to the payments. Unless specified otherwise in
the applicable prospectus supplement, Apache Finance will make payment of any
installment of interest on registered securities to the person in whose name
that registered security is registered at the close of business on the regular
record date for the interest payment.
Unless otherwise specified in the applicable prospectus supplement, the
corporate trust office of the trustee in the Borough of Manhattan, The City of
New York, will be designated:
- as Apache Finance's sole paying agent for payments with respect to debt
securities that are issuable solely as registered securities; and
- as Apache Finance's paying agent in the Borough of Manhattan, The City of
New York, for payments with respect to debt securities, subject to the
limitation described above in the case of bearer securities, that are
issuable solely as bearer securities or as both registered securities and
bearer securities.
Apache Finance will name any paying agents outside the United States and
any other paying agents in the United States initially designated by it for the
debt securities in the applicable prospectus supplement. Apache Finance may at
any time designate additional paying agents or rescind the designation of any
paying agent or approve a change in the office through which any paying agent
acts. However, if debt securities of a series are issuable solely as registered
securities, Apache Finance will be required to
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maintain a paying agent in each place of payment for that series. If debt
securities of a series are issuable as bearer securities, Apache Finance will be
required to maintain:
- a paying agent in the Borough of Manhattan, The City of New York, for
payments with respect to any registered debt securities of the series and
for payments with respect to bearer securities of the series in the
circumstance described above, but not otherwise; and
- a paying agent in a place of payment located outside the United States
where debt securities of that series and any attached coupons may be
presented and surrendered for payment.
However, if the debt securities of that series are listed on the London
Stock Exchange, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and if the stock exchange requires it, Apache
Finance will maintain a paying agent in London or Luxembourg or any other
required city located outside the United States for those debt securities.
All moneys Apache Finance pays to a paying agent for the payment of
principal of, and any premium or interest on, any debt security or coupon that
remains unclaimed at the end of two years after becoming due and payable will be
repaid to Apache Finance. After that time, the holder of the debt security or
coupon will look only to Apache Finance for payments out of those repaid
amounts.
GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in the
form of one or more global certificates that Apache Finance will deposit with a
depositary identified in the applicable prospectus supplement. Global securities
may be issued in either registered or bearer form and in either temporary or
permanent form. Unless and until it is exchanged in whole or in part for the
individual debt securities it represents, a global security may not be
transferred except as a whole:
- by the applicable depositary to a nominee of the depositary;
- by any nominee to the depositary itself or another nominee; or
- by the depositary or any nominee to a successor depositary or any nominee
of the successor.
Apache Finance will describe the specific terms of the depositary
arrangement with respect to a series of debt securities in the applicable
prospectus supplement. Apache Finance anticipates that the provisions described
below will generally apply to depositary arrangements.
When Apache Finance issues a global security in registered form, the
depositary for the global security or its nominee will credit, on its book-entry
registration and transfer system, the respective principal amounts of the
individual debt securities represented by that global security to the accounts
of participants that have accounts with the depositary. Those accounts will be
designated by the dealers, underwriters or agents with respect to the underlying
debt securities or by Apache Finance if those debt securities are offered and
sold directly by Apache Finance. Ownership of beneficial interests in a global
security will be limited to participants or persons that may hold interests
through participants. For interests of participants, ownership of beneficial
interests in the global security will be shown on records maintained by the
applicable depositary or its nominee. For interests of persons other than
participants, that ownership information will be shown on the records of
participants. Transfer of that ownership will be effected only through those
records. The laws of some states require that certain purchasers of securities
take physical delivery of securities in definitive form. These limits and laws
may impair Apache Finance's ability to transfer beneficial interests in a global
security.
As long as the depositary for a global security, or its nominee, is the
registered owner of that global security, the depositary or nominee will be
considered the sole owner or holder of the debt securities
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represented by the global security for all purposes under the indenture. Except
as described below, owners of beneficial interests in a global security:
- will not be entitled to have any of the underlying debt securities
registered in their names;
- will not receive or be entitled to receive physical delivery of any of
the underlying debt securities in definitive form; and
- will not be considered the owners or holders under the indenture relating
to those debt securities.
Payments of principal of, and any premium and interest on, individual debt
securities represented by a global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee as the
registered owner of the global security representing those debt securities.
Neither Apache Finance, the trustee, any paying agent nor the registrar for the
debt securities will be responsible for any aspect of the records relating to or
payments made by the depositary or any participants on account of beneficial
interests of the global security.
Apache Finance expects that the depositary or its nominee, upon receipt of
any payment of principal, premium or interest relating to a permanent global
security representing any series of debt securities, immediately will credit
participants' accounts with the payments. Those payments will be credited in
amounts proportional to the respective beneficial interests of the participants
in the principal amount of the global security as shown on the records of the
depositary or its nominee. Apache Finance also expects that payments by
participants to owners of beneficial interests in the global security held
through those participants will be governed by standing instructions and
customary practices. This is now the case with securities held for the accounts
of customers in bearer form or registered in "street name." Those payments will
be the sole responsibility of those participants.
If the depositary for a series of debt securities is at any time unwilling,
unable or ineligible to continue as depositary and Apache Finance does not
appoint a successor depositary within 90 days, Apache Finance will issue
individual debt securities of that series in exchange for the global security or
securities representing that series. In addition, Apache Finance may at any time
in its sole discretion determine not to have any debt securities of a series
represented by one or more global securities. In that event, Apache Finance will
issue individual debt securities of that series in exchange for the global
security or securities. Further, if Apache Finance specifies, an owner of a
beneficial interest in a global security may, on terms acceptable to Apache
Finance, the trustee and the applicable depositary, receive individual debt
securities of that series in exchange for those beneficial interests. The
foregoing is subject to any limitations described in the applicable prospectus
supplement. In that instance, the owner of the beneficial interest will be
entitled to physical delivery of individual debt securities equal in principal
amount to the beneficial interest and to have the debt securities registered in
its name. Those individual debt securities will be issued in denominations,
unless Apache Finance specifies otherwise, of $1,000 or integral multiples of
$1,000.
For a description of the depository arrangements for global securities held
by The Depository Trust Company, see "Book-Entry Securities."
THE INDENTURE LIMITS OUR AND APACHE FINANCE'S ABILITY TO INCUR LIENS
Nothing in the indenture or the debt securities will in any way limit the
amount of indebtedness or securities which we or our subsidiaries, as defined in
the indenture, may incur or issue. The indenture provides that none of us,
Apache Finance or any of our other subsidiaries may issue, assume or guarantee
any notes, bonds, debentures or other similar evidences of indebtedness for
money borrowed secured by a mortgage, lien, pledge, security interest or other
encumbrance -- defined in the indenture as "liens" -- upon any of its property
unless we provide that any and all debt securities then outstanding shall be
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secured by a lien equally and ratably with any and all other obligations secured
by the lien. The restrictions on liens will not, however, apply to:
- liens existing on the date of the indenture or provided for under the
terms of agreements existing on the date of the indenture;
- liens securing all or part of the cost of exploring, producing,
gathering, processing, marketing, drilling or developing any of our or
our subsidiaries' properties, or securing indebtedness incurred to
provide funds therefor or indebtedness incurred to finance all or part of
the cost of acquiring, constructing, altering, improving or repairing
these properties, or securing indebtedness incurred to provide funds
therefor;
- liens securing only indebtedness owed by one of our subsidiaries to us,
Apache Finance or to one or more of our other subsidiaries;
- liens on the property of any corporation or other entity existing at the
time it becomes our subsidiary;
- 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 or any state or
any department, agency or instrumentality of either or indebtedness
issued to or guaranteed for the benefit of a foreign government or 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 Corp. and the
Multilateral Investment Guarantee Agency;
- any extension, renewal or replacement or successive extensions, renewals
or replacements of any lien referred to in the foregoing clauses that
existed on the date of the indenture;
- certain other liens incurred in the ordinary course of business; or
- liens which secure "Limited Recourse Indebtedness," as defined in the
indenture.
In addition, the following types of transactions, among others, shall not be
deemed to create indebtedness secured by liens:
- 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 that,
the transferee will receive as a result of the transfer a specified
amount of money or of crude oil, natural gas or other petroleum
hydrocarbons;
- 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
- liens required by any contract or statute in order to permit us or one of
our subsidiaries to perform any contract or subcontract made by it with
or at the request of the U.S. 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 us or one of our subsidiaries by any of
these entities pursuant to the provisions of any contract or statute.
THE INDENTURE LIMITS OUR AND APACHE FINANCE'S ABILITY TO ENGAGE IN
SALE/LEASEBACK TRANSACTIONS
Unless we specify otherwise in the applicable prospectus supplement,
neither we nor any of our subsidiaries will enter into any arrangement with any
person, other than us or one of our subsidiaries, to lease any property to us or
a subsidiary of ours for more than three years. For the restriction to apply, we
or one of our subsidiaries must sell or plan to sell the property to the person
leasing it to us or our
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subsidiary or to another person to which funds have been or are to be advanced
on the security of the leased property. The limitation does not apply where:
- either we, Apache Finance or our other subsidiaries would be entitled to
create debt secured by a lien on the property to be leased in a principal
amount equal to or exceeding the value of that sale/ leaseback
transaction;
- since the date of the indenture and within a period commencing six months
before the consummation of that arrangement and ending six months after
the consummation of the arrangement, we, Apache Finance or our other
subsidiaries have expended or will expend for any property -- including
amounts expended for the acquisition, exploration, drilling or
development of the property, and for additions, alterations, improvements
and repairs to the property -- an amount equal to all or a portion of the
net proceeds of that arrangement and we, Apache Finance or our other
subsidiaries designate that amount as a credit against that arrangement,
with any amount not being so designated to be applied as set forth in the
next item; or
- during or immediately after the expiration of the 12 months after the
effective date of that transaction, we, Apache Finance or any of our
other subsidiaries apply to the voluntary defeasance or retirement of the
debt securities and or 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 that transaction or the fair value
of the property at the time of entering into the transaction, in either
case adjusted to reflect the remaining term of the lease and any amount
we utilize as set forth in the prior item. The amount will be reduced by
the principal amount of senior indebtedness we voluntarily retire within
that 12-month period.
EXEMPTED INDEBTEDNESS
Notwithstanding the limitations on liens and sale/leaseback transactions
described in this prospectus, we and Apache Finance may create liens or enter
into sale/leaseback transactions not otherwise permitted if immediately after
the transaction, the sum of outstanding indebtedness for borrowed money incurred
after the date of the indenture and secured by these liens plus the attributable
debt in respect of any sale/leaseback transaction entered into after the date of
the indenture does not exceed 10 percent of our consolidated net worth.
THE INDENTURE INCLUDES 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:
- if we or Apache Finance fail to pay any interest on any debt security of
that series when due, and the failure continues for 30 days;
- if we or Apache Finance fail to pay principal of or any premium on the
debt securities of that series when due and payable, either at maturity
or otherwise;
- if we or Apache Finance fail to perform or breach any of the other
covenants or warranties 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 -- and
that breach or failure continues for 60 days after written notice as
provided in the indenture;
- if any of our, Apache Finance's or any of our other subsidiaries'
indebtedness, as defined in the indenture, in excess of an aggregate of
$25,000,000 in principal amount is accelerated under any event of default
as defined in any mortgage, indenture or instrument and the acceleration
has not been rescinded or annulled within 30 days after written notice as
provided in the indenture specifying the event of default and requiring
us and Apache Finance to cause that acceleration to be rescinded or
annulled;
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- if we, Apache Finance or any of our other subsidiaries fail to pay, bond
or otherwise discharge within 60 days of entry, a judgment, court order
or uninsured monetary damage award against us or them in excess of an
aggregate of $25,000,000 which is not stayed on appeal or otherwise being
appropriately contested in good faith;
- certain events of bankruptcy, insolvency or reorganization involving us,
Apache Finance or any of our other subsidiaries; and
- any other event of default provided with respect to the debt securities
of that series.
If an event of default with respect to the debt securities of any series,
other than an event of default described in the second to last and third to last
items above, occurs and is continuing, either the trustee or the holders of at
least 25% in aggregate principal amount of the outstanding debt securities of
that series may declare the principal amount of the 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 that series may, under certain circumstances,
rescind and annul the acceleration. If an event of default described in the
second to last and third to last items above occurs, the principal amount and
accrued interest -- or a lesser amount as provided for in the debt securities of
that series -- will become immediately due and payable without any declaration
or other act by the trustee or any holder.
Within 90 days after the occurrence of any event of default under the
indenture with respect to the debt securities of any series, the trustee must
transmit notice of the event of default to the holders of the debt securities of
that series unless the event of default has been cured or waived. However,
except in the case of a payment default, the trustee may withhold the notice if
and so long as the board of directors, the executive committee or a trust
committee of directors or responsible officers of the trustee has in good faith
determined that the withholding of the notice is in the interest of the holders
of debt securities of that series.
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 that
series by all appropriate judicial proceedings.
Subject to the duty of the trustee during any default to act with the
required standard of care, the trustee is 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 the holders offer the trustee reasonable
indemnity. Subject to indemnifying 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 may
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the
trustee, with respect to the debt securities of that series.
APACHE FINANCE IS OBLIGATED TO PURCHASE DEBT SECURITIES ON A CHANGE IN CONTROL
If a change in control, as defined in the indenture, occurs, Apache Finance
must mail within 15 days a written notice regarding the change in control to the
trustee and to every holder of the debt securities of each series. The notice
must also be published at least once in an authorized newspaper, as defined in
the indenture, and must state:
- the event causing the change in control and the date of the event;
- the date by which notice of the change in control is required by the
indenture to be given;
- the date, 35 business days after the occurrence of the change in control,
by which Apache Finance must purchase debt securities it is obligated to
purchase pursuant to the selling holder's exercise of rights on change in
control;
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- the price Apache Finance must pay for the debt securities it is obligated
to purchase;
- the name and address of the trustee;
- the procedure for surrendering debt securities to the trustee or other
designated office or agent for payment;
- a statement of Apache Finance's obligation to make prompt payment on
proper surrender of the debt securities;
- the procedure for holders' exercise of rights of sale of the debt
securities; and
- the procedures by which a holder may withdraw the notice after it is
given.
After Apache Finance gives this notice it will be obligated, at the election of
each holder, to purchase those debt securities. Under the indenture, a change in
control is deemed to have occurred when:
- any event requiring the filing of any report under or in response to
Schedule 13D or 14D-1 pursuant to the Securities Exchange Act of 1934
disclosing beneficial ownership of either 50% or more of our common stock
then outstanding or 50% or more of the voting power of our voting stock
then outstanding;
- the completion of any sale, transfer, lease, or conveyance of our
properties and assets substantially as an entirety to any person or
persons that is not our subsidiary, as those terms are defined in the
indenture; or
- the completion of a consolidation or merger of us with or into any other
person or entity in a transaction in which either we are not the sole
surviving corporation or our common stock existing before the transaction
is converted into cash, securities or other property and those exchanging
our common stock do not, as a result of the transaction, receive either
75% or more of the survivor's common stock or 75% or more of the voting
power of the survivor's voting stock.
Apache Finance will not purchase any debt securities if there has occurred
and is continuing an event of default under the indenture, other than default in
payment of the purchase price payable for the debt securities upon change in
control. In connection with any purchase of debt securities after a change in
control, we and Apache Finance will comply with all federal and state securities
laws, including, specifically, Rule 13e-4, if applicable, of the Securities
Exchange Act of 1934, and any related Schedule 13E-4 required to be submitted
under that rule.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
We or Apache Finance 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:
- have become due and payable;
- will become due and payable within one year; or
- are scheduled for redemption within one year.
To discharge the obligations with respect to a series of debt securities, we or
Apache Finance must deposit with the trustee, in trust, an amount of funds in
U.S. dollars or in the foreign currency in which those debt securities are
payable sufficient to pay the entire amount of principal of, and any premium or
interest on, those debt securities to the date of the deposit if those debt
securities have become due and payable or to the maturity of the debt
securities, as the case may be.
The indenture provides that, unless the provisions of section 402 of the
indenture are made inapplicable to the debt securities, we or Apache Finance may
elect either
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- to defease and be discharged from any and all obligations with respect to
those debt securities, which is referred to as "legal defeasance"; or
- to be released from the obligations with respect to the debt securities
under the covenants described in "The Indenture Limits Our Ability to
Incur Liens" and "The Indenture Limits Our Ability to Engage in
Sale/Leaseback Transactions" above or, if provided pursuant to section
301 of the indenture, the obligations with respect to any other covenant,
which is referred to as "covenant defeasance."
In the case of legal defeasance, we and Apache Finance will still retain
some obligations in respect of the debt securities, including the obligations:
- to pay additional amounts, if any, upon the occurrence of certain events
of taxation, assessment or governmental charge with respect to payments
on the debt securities;
- to register the transfer or exchange of the debt securities;
- to replace temporary or mutilated, destroyed, lost or stolen debt
securities; and
- to maintain an office or agency with respect to the debt securities and
to hold moneys for payment in trust.
After a covenant defeasance, any omission to comply with the obligations or
covenants that have been defeased shall not constitute a default or an event of
default with respect to the debt securities.
To elect either legal defeasance or covenant defeasance we or Apache
Finance must deposit with the trustee, in trust, an amount, in U.S. dollars or
in the foreign currency in which the relevant debt securities are payable at the
stated maturity, or in government obligations, as defined below, or both,
applicable to those 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 any premium and interest on those
debt securities on their scheduled due dates.
In addition, we or Apache Finance can only elect legal defeasance or
covenant defeasance if, among other things:
- the applicable 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 we or Apache Finance are a party or by which we or
Apache Finance are bound;
- 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 the trust; and
- we or Apache Finance have delivered to the trustee an opinion of counsel
to the effect that the holders of the debt securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
the 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 the defeasance had not occurred, and the opinion of counsel, in
the case of legal defeasance, must refer to and be based upon a letter
ruling of the Internal Revenue Service received by us, 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.
The indenture deems a foreign currency to be any currency, currency unit or
composite currency, including, without limitation, the ECU or euro, issued by
the government of one or more countries other than the United States or by any
recognized confederation or association of governments.
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The indenture defines government obligations as securities which are not
callable or redeemable at the option of the issuer or issuers and are:
- direct obligations of the United States 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
- obligations of a person or entity controlled or supervised by and acting
as an agency or instrumentality of the United States or the government or
governments which issued the foreign currency in which the debt
securities of a particular series are payable, the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States or that other government or governments.
Government obligations also include a depository receipt issued by a bank or
trust company as custodian with respect to any government obligation described
above or a specific payment of interest on or principal of or any other amount
with respect to any government obligation held by that custodian for the account
of the holder of the depository receipt, as long as, except as required by law,
that custodian is not authorized to make any deduction from the amount payable
to the holder of the 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 the depository receipt.
Unless otherwise specified in the applicable prospectus supplement, if
after we or Apache Finance have deposited funds or government obligations to
effect legal defeasance or covenant defeasance with respect to debt securities
of any series, either:
- the holder of a debt security of that series is entitled to, and does,
elect to receive payment in a currency other than that in which the
deposit has been made in respect of that debt security; or
- a conversion event, as defined below, occurs in respect of the foreign
currency in which the deposit has been made,
the indebtedness represented by that debt security shall be deemed to have been,
and will be, fully discharged and satisfied through the payment of the principal
of, and any premium and interest on, that debt security as that debt security
becomes due out of the proceeds yielded by converting the amount or other
properties so deposited in respect of that debt security into the currency in
which that debt security becomes payable as a result of the election or
conversion event based on:
- in the case of payments made pursuant to the first of the two items in
the list above, the applicable market exchange rate for the currency in
effect on the second business day before the date of the payment; or
- with respect to a conversion event, the applicable market exchange rate
for the foreign currency in effect, as nearly as feasible, at the time of
the conversion event.
The indenture defines a "conversion event" as the cessation of use of:
- a foreign currency other than the ECU and euro both by the government of
the country or the confederation which issued the foreign currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community;
- the ECU and euro both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Community; or
- any currency unit or composite currency other than the ECU and euro for
the purposes for which it was established.
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Unless otherwise specified in the applicable prospectus supplement, all payments
of principal of, and any premium 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.
If we or Apache Finance effect a covenant defeasance with respect to any
debt securities and the 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 which there has been covenant defeasance, the amount in the foreign
currency in which the debt securities are payable, and government obligations on
deposit with the trustee, will be sufficient to pay amounts due on the debt
securities at the time of the stated maturity but may not be sufficient to pay
amounts due on the debt securities at the time of the acceleration resulting
from the event of default. However, we or Apache Finance would remain liable for
payment of the 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, we and Apache Finance are required to furnish to the
trustee annually a statement as to our and Apache Finance's performance of
certain of our and Apache Finance's obligations under the indenture and as to
any default in performance. We and Apache Finance 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.
MODIFICATION AND WAIVER
We, Apache Finance and the trustee may modify the indenture or waive
certain provisions of the indenture with the consent of the holders of not less
than a majority in aggregate principal amount of the debt securities of each
series affected by the modification or waiver. However, provisions of the
indenture may not be waived or modified without the consent of the holder of
each debt security affected thereby if the modification or waiver would:
- 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 payable with respect to, any debt security;
- reduce the principal amount of, or premium or interest on, or any
additional amounts payable with respect to, any debt security;
- change the coin or currency in which any debt security or any premium or
any interest on the debt security or any additional amounts payable with
respect to the debt security is payable;
- 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, exchange or conversion, on or after the redemption, exchange
or conversion 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;
- reduce the percentage and principal amount of the outstanding debt
securities, the consent of whose holders is required in order to take
certain actions;
- change any of our or Apache Finance's obligations to maintain an office
or agency in the places and for the purposes required by the indenture;
- modify or affect in any manner adverse to the holders of the debt
securities the terms and conditions of our or Apache Finance's
obligations regarding the due and punctual payment of principal or, any
premium on or all interest on the debt securities; or
- modify any of the above provisions.
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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
that series, waive our or Apache Finance's compliance with certain restrictive
provisions of the indenture. 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 that series, waive any past default and its
consequences under the indenture with respect to the debt securities of that
series, except:
- a payment default with respect to debt securities of that series; or
- a default 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.
ASSUMPTION OF THE OBLIGATIONS UNDER THE DEBT SECURITIES BY APACHE
Under the indenture, we may, at our option, assume Apache Finance's
obligations under the debt securities if:
- we expressly assume the obligations in an assumption agreement or
supplemental indenture that is executed and delivered to the trustee in a
form that is acceptable to the trustee;
- no event of default and no event that after a notice or the lapse of time
or both would become an event of default occurs and is continuing after
giving effect to our assuming the obligations; and
- we expressly agree in an assumption agreement or supplemental indenture
to indemnify the holders of the debt securities against any tax
assessment or government charge imposed on a holder or required to be
withheld or deducted from any payment made to a holder, including any
charge or withholding required on account of this indemnification, and
any costs or expenses incurred by a holder on account of our assuming the
obligations. If we deliver to the trustee an opinion of an independent
tax counsel or consultant of recognized standing stating that the holders
will not recognize income, gain or loss, for United States federal income
tax purposes, as a result of assuming these obligations, then a holder
will have the above indemnification rights only if and when gain for
United States federal income tax purposes is actually recognized by a
holder.
If we assume Apache Finance's obligations, as described above, we will be
substituted for Apache Finance for all purposes regarding the debt securities so
assumed as if we had been the original issuer of the securities.
ASSIGNMENT TO ANOTHER SUBSIDIARY
Under the indenture, Apache Finance may assign its obligations under any
series of debt securities to any of our other subsidiaries and the new
subsidiary will be treated, for all purposes, as Apache Finance's successor with
respect to the series of debt securities assigned, provided that the conditions
described under "Consolidation, Merger and Sale of Assets" below are satisfied.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may, without the consent of the holders of the debt securities,
consolidate or merge with or into, or convey, transfer or lease our properties
and assets substantially as an entirety to, any person that is a corporation,
limited liability company, partnership or trust organized and validly existing
under the laws of any domestic jurisdiction. We may also permit any of those
persons to consolidate with or merge into us or convey, transfer or lease its
properties and assets substantially as an entirety to us, as long as any
successor person assumes our obligations on the securities and after giving
effect to the transaction no event of default under the indenture, and no event
which, after notice or lapse of time or both, would become an event of default,
will have occurred and be continuing, and as long as some other conditions are
met.
Apache Finance 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 or
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permit any person to consolidate with or merge into or convey, transfer or lease
its properties and assets substantially as an entirety to us or Apache Finance,
as long as the person assumes Apache Finance's obligations on the debt
securities and under the indenture, and immediately after the transaction, no
event of default, and no event which, after notice or lapse of time or both,
would become an event of default, under the indenture has occurred.
Also, the successor person to us or Apache Finance must expressly agree in
a supplemental indenture:
- that all payments on the debt securities in respect of the principal of
and any premium and interest shall be made without withholding or
deduction for any present or future taxes, duties, assessments or
governmental charges of any nature imposed or levied by or on behalf of
the person's jurisdiction of organization or political subdivision or
taxing authority, unless the taxes are required by the jurisdiction,
subdivision or authority to be withheld or deducted, in which case the
person will pay additional amounts so that after deducting the taxes the
holder of a debt security receives the same amount that the holder would
have received if no withholding or deduction was required; and
- to indemnify immediately the holder of each debt security against
- any tax, assessment or governmental charge imposed on the holder or
required to be withheld or deducted from any payment to the holder as a
consequence of the transaction; and
- any other tax costs or other tax expenses of the transaction.
If we, Apache Finance or the successor person deliver 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 the transaction, a holder will have this right to indemnification
only if and when gain for U.S. federal income tax purposes is actually
recognized by the holder.
PAYMENT OF ADDITIONAL AMOUNTS
Apache Finance must make all payments of, or in respect of, principal of
and any premium and interest on the debt securities without withholding or
deduction for any taxes imposed or levied by or on behalf of any Canadian taxing
authorities. If the taxing authorities nonetheless require Apache Finance to
withhold taxes, Apache Finance must pay as additional interest an amount that
will result, after deducting the taxes, in the payment to the holder of the debt
securities of the amount that would have been paid if no withholding was
required. Except as otherwise specified in the applicable prospectus supplement,
Apache Finance is not required to pay this additional interest for or on account
of:
- any tax that would not have been imposed but for the fact that the holder
- was a resident, domiciled or national of, or engaged in business or
maintained a permanent establishment or was physically present in Canada
or otherwise had some connection with Canada other than merely owning
the debt security;
- presented, if presentation is required, the debt security for payment in
Canada, unless the debt security could not have been presented for
payment elsewhere;
- presented, if presentation is required, the debt security more than 30
days after the date on which the payment relating to the 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 the additional
interest if it had presented the debt security for payment on any day
within this 30 day period;
- is not dealing with Apache Finance, directly or indirectly, on an
arm's-length basis; or
- entered into or participated in a scheme to avoid Canadian withholding
tax that Apache Finance was neither a party to nor participated in;
- any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
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- any tax that is payable other than by withholding or deduction from
payments of, or in respect of, principal of or any premium or interest on
the debt securities;
- any tax that is imposed or withheld because the holder or the beneficial
owner of a debt security failed, upon request of Apache Finance to
provide information concerning the nationality, residence or identity of
the holder or the beneficial owner, or to make any declaration or other
similar claim or satisfy any information or reporting requirement that is
required or imposed by Canadian federal income tax laws as a precondition
to exemption from all or part of the tax, assessment or other
governmental charge; or
- any combination of four items listed above.
Apache Finance also does not have to pay additional interest with respect
to any payment of the principal of or any premium or interest on the debt
security to any holder that is a fiduciary or partnership or other than the sole
beneficial owner of the payment to the extent the payment would be required by
the laws of Canada to be included in the income for tax purposes of a
beneficiary or settlor with respect to a fiduciary or a member of the
partnership or a beneficial owner who would not have been entitled to the
additional interest if it held the debt security.
Any amounts paid by us, as guarantor, under the indenture must be paid
without withholding or deduction for any taxes imposed or levied by or on behalf
of any U.S. taxing authority. If a U.S. taxing authority nonetheless requires us
to withhold taxes, we must pay an additional amount so that the net amount paid
to the holder, after deducting the taxes, is not less than the amount then due
and payable on the debt securities. We are not required to pay this additional
amount to any holder of a debt security who is:
- subject to U.S. tax by reason of the holder being connected with the U.S.
otherwise than by holding or owning the debt securities; or
- not dealing at arm's length with us.
Where this prospectus mentions, in any context, the payment of principal
of, or any premium or interest on, or in respect of, the debt securities of any
series or the net proceeds received on the sale or exchange of the debt
securities, this amount shall be deemed to include the payment of additional
amounts provided for in the indenture to the extent that the additional amounts
are, were or would be payable under the indenture.
REDEMPTION FOR TAXATION REASONS
If Canadian taxing authorities change or amend their laws, regulations or
published tax rulings or the official administration, application or
interpretation of their laws, regulations or published tax rulings either
generally or in relation to the debt securities, and Apache Finance determines
that:
- it will be required to pay any additional amounts under the indenture or
the terms of any debt security
- in respect of interest on the next succeeding interest payment date; or
- in respect of the principal of any discounted debt securities on the
date of the determination, assuming that a payment in respect of
principal were required to be made on this date under the terms of the
debt securities; and
- Apache Finance cannot avoid paying the additional amount by taking
reasonable measures available to it,
it may, at its option, redeem all, but not less than all, of the debt securities
of any series in respect of which any 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. Unless otherwise specified in the accompanying
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prospectus supplement, the redemption price will be equal to 100 percent of the
principal amount of the debt securities plus accrued interest to the date of
redemption, except that any debt securities that are discounted debt securities
may be redeemed at the redemption price specified in the debt securities' terms,
as long as:
- no notice of redemption may be given earlier than 60 days before the
earliest date on which Apache Finance would be obligated to pay any
additional amounts if a payment was due in respect of the debt
securities; and
- at the time any redemption notice is given, the obligation to pay any
additional amounts must remain in effect.
If
- Apache Finance has 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 person that is organized under the
laws of any jurisdiction other than the United States or Canada;
- as the result of any change in or any amendment to the laws, regulations
or published tax rulings of the jurisdiction under which Apache Finance's
successor is organized or of its political subdivisions or taxing
authorities affecting taxation, or any change in the official
administration, application or interpretation of its laws, regulations or
published tax rulings either generally or in relation to any particular
debt securities, Apache Finance's successor must pay any additional
amounts under the indenture or the terms of any debt securities
- in respect of interest on any debt securities on the next succeeding
interest payment date; or
- in respect of the principal of any discounted debt securities on the
date of the determination, assuming the principal must be paid on that
date under the terms of the debt securities; and
- Apache Finance or its successor taking reasonable measures cannot avoid
this obligation,
Apache Finance or its successor may redeem all, but not less than all, of the
debt securities of any series in respect of which any 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 of the debt securities plus accrued interest to the date
fixed for redemption, unless otherwise specified in the applicable prospectus
supplement, except that any debt securities that are discounted debt securities
may be redeemed at the price specified in the debt securities' terms. No notice
of redemption may be given earlier than 60 days before the earliest date on
which a successor must pay any additional amounts if a payment was due in
respect of the debt securities. Also, at the time any redemption notice is
given, the successor's obligation to pay any additional amounts must remain in
effect.
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
Under the indenture, Apache Finance will irrevocably appoint CT Corporation
System, 111 8th Avenue, New York, New York 10011, 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 submitted to jurisdiction in New York.
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GOVERNING LAW
The indenture, the debt securities and the guarantees are governed by and
construed under the laws of the State of New York, without regard to the
principles of conflicts of laws, except as may otherwise be required by
mandatory provisions of law. All matters governing the authorization and
execution of the indenture and the debt securities by Apache Finance will be
governed by and construed in accordance with the laws of Nova Scotia, Canada.
ENFORCEABILITY OF JUDGMENTS
Since a substantial portion of Apache Finance's assets are outside the
United States, any judgment obtained in the United States against Apache
Finance, including judgments with respect to the payment of principal or
interest on the securities, may not be collectible in the United States.
BOOK-ENTRY SECURITIES
Unless otherwise specified in the applicable prospectus supplement, we and
Apache Finance will issue securities in the form of one or more book-entry
certificates registered in the name of a depositary or a nominee of a
depositary. Unless otherwise specified in the applicable prospectus supplement,
the depositary will be The Depository Trust Company, also referred to as DTC. We
and Apache Finance have been informed by DTC that its nominee will be Cede & Co.
Accordingly, Cede is expected to be the initial registered holder of all
securities that are issued in book-entry form.
No person that acquires a beneficial interest in securities issued in
book-entry form will be entitled to receive a certificate representing those
securities, except as set forth in this prospectus or in the applicable
prospectus supplement. Unless and until definitive securities are issued under
the limited circumstances described below, all references to actions by
beneficial owners of securities issued in book-entry form will refer to actions
taken by DTC upon instructions from its participants, and all references to
payments and notices to beneficial owners will refer to payments and notices to
DTC or Cede, as the registered holder of the securities.
DTC has informed us and Apache Finance that it is:
- a limited purpose trust company organized under New York banking laws;
- a "banking organization" within the meaning of the New York banking laws;
- 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 under the Securities Exchange Act.
DTC has also informed us that it was created to:
- hold securities for "participants"; and
- facilitate the clearance and settlement of securities transactions among
participants through electronic book-entry, thereby eliminating the need
for the physical movement of securities certificates.
Participants have accounts with DTC and include securities brokers and
dealers, banks, trust companies and clearing corporations. Indirect access to
the DTC system also is available to indirect participants such as banks,
brokers, dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly.
Persons that are not participants or indirect participants but desire to
buy, sell or otherwise transfer ownership of or interests in securities may do
so only through participants and indirect participants. Under the book-entry
system, beneficial owners may experience some delay in receiving payments, as
payments
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will be forwarded by our agent to Cede, as nominee for DTC. DTC will forward
these payments to its participants, which thereafter will forward them to
indirect participants or beneficial owners. Beneficial owners will not be
recognized by the applicable registrar, transfer agent, trustee or depositary as
registered holders of the securities entitled to the benefits of the certificate
or the indenture. Beneficial owners that are not participants will be permitted
to exercise their rights as an owner only indirectly through participants and,
if applicable, indirect participants.
Under the current rules and regulations affecting DTC, DTC will be required
to make book-entry transfers of securities among participants and to receive and
transmit payments to participants. Participants and indirect participants with
which beneficial owners of securities have accounts are also required by these
rules to make book-entry transfers and receive and transmit those payments on
behalf of their respective account holders.
Because DTC can act only on behalf of participants, who in turn act only on
behalf of other participants or indirect participants, and on behalf of certain
banks, trust companies and other persons approved by it, the ability of a
beneficial owner of securities issued in book-entry form to pledge those
securities to persons or entities that do not participate in the DTC system may
be limited due to the unavailability of physical certificates for the
securities.
DTC has advised us and Apache Finance that it will take any action
permitted to be taken by a registered holder of any securities under the
certificate or the indenture only at the direction of one or more participants
to whose accounts with DTC the securities are credited.
DTC has further advised us and Apache Finance that its management is aware
that some computer applications, systems, and the like for processing data that
are dependent upon calendar dates, including dates before, on, and after January
1, 2000, may encounter "Year 2000 problems." DTC has informed its participants
and other members of the financial community that it has developed and is
implementing a program so that its computer systems, as they relate to the
timely payment of distributions to security holders, book-entry deliveries, and
settlement of trades within DTC, continue to function appropriately. This
program includes a technical assessment and a remediation plan, each of which is
complete. Additionally, DTC's plan includes a testing phase, which is expected
to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including issuers and their agents, as well as DTC's direct
and indirect participants and third party vendors from whom DTC licenses
software and hardware, and third party vendors on whom DTC relies for
information or the provision of services, including telecommunication and
electrical utility service providers, among others. DTC has informed its
participants and other members of the financial community that it is contacting
and will continue to contact third party vendors from whom it acquires services
to impress upon them the importance of these services being Year 2000 compliant
and determine the extent of their efforts for Year 2000 remediation -- and, as
appropriate, testing -- of their services. In addition, DTC is in the process of
developing contingency plans that it considers appropriate.
According to DTC, the information with respect to DTC has been provided to
its participants and other members of the financial community for informational
purposes only and is not intended to serve as a representation, warranty, or
contract modification of any kind.
Unless otherwise specified in the applicable prospectus supplement, a
book-entry security will be exchangeable for definitive securities registered in
the names of persons other than DTC or its nominee only if:
- DTC notifies us or Apache Finance that it is unwilling or unable to
continue as depositary for the book-entry security or DTC ceases to be a
clearing agency registered under the Securities Exchange Act at a time
when DTC is required to be so registered; or
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- we or Apache Finance execute and deliver to the applicable registrar,
transfer agent, trustee and/or depositary an order complying with the
requirements of the certificate, the indenture or any deposit agreement
that the book-entry security will be so exchangeable.
Any book-entry security that is exchangeable in accordance with the preceding
sentence will be exchangeable for securities registered in those names as DTC
directs.
If one of the events described in the immediately preceding paragraph
occurs, DTC is generally required to notify all participants of the availability
through DTC of definitive securities. Upon surrender by DTC of the book-entry
security representing the securities and delivery of instructions for re-
registration, the registrar, transfer agent, trustee or depositary, as the case
may be, will reissue the securities as definitive securities. After reissuance
of the securities, those persons will recognize the beneficial owners of
definitive securities as registered holders of securities.
Except as described above:
- a book-entry security may not be transferred except as a whole book-entry
security by or among DTC, a nominee of DTC and/or a successor depositary
appointed by Apache Finance; and
- DTC may not sell, assign or otherwise transfer any beneficial interest in
a book-entry security unless the beneficial interest is in an amount
equal to an authorized denomination for the securities evidenced by the
book-entry security.
None of Apache, Apache Finance, the trustees, any registrar and transfer
agent or any depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
book-entry security.
CERTAIN INCOME TAX CONSIDERATIONS
This section summarizes certain United States and Canadian federal income
tax consequences of purchasing, owning and disposing of the debt securities.
Except as specified otherwise in this section, this summary 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 or capital property and does not purport to address all
aspects of United States or Canadian federal income taxes that may be relevant
to investing in the debt securities, nor does it address the United States or
Canadian tax consequences that apply to persons in special tax situations, such
as financial institutions, insurance companies, regulated investment companies,
dealers in securities or currencies, or persons holding debt securities as a
hedge against currency risks or as a position in a "straddle" for tax purposes.
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 and Canadian federal income tax laws to their particular
situations as well as any consequences of purchasing, owning or disposing of the
debt securities arising under the laws of any other taxing jurisdiction.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
It is the opinion of Chamberlain, Hrdlicka, White, Williams & Martin,
Houston, Texas, special U.S. tax counsel to Apache, that the following summary
addresses the material United States federal income tax considerations of
purchasing, owning and disposing of the debt securities.
As used herein, the term "U.S. holder" means a beneficial owner of a debt
security that is:
- a citizen or resident of the United States;
- a corporation, partnership or other entity treated as a corporation or a
partnership for United States federal income tax purposes, created or
organized in or under the laws of the United States or of
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any state thereof, including the District of Columbia (other than a
partnership that is not treated as a United States person under any
applicable Treasury regulations);
- an estate the income of which is subject to United States federal income
taxation regardless of its source; or
- a trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of
the trust.
Certain trusts that do not satisfy the last criteria above, but that existed on
August 20, 1996 and were treated as United States persons before this date, may
elect to continue to be so treated and 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.
U.S. Holders
Taxation of Interest. U.S. holders generally must include in their gross
income, as ordinary interest income, the gross amount of interest, including
additional amounts, if any, accrued or received in respect of the debt
securities. We or Apache Finance will file an election with the Internal Revenue
Service to disregard Apache Finance as an entity separate from us for United
States federal income tax purposes. Accordingly, the interest income will be
treated as U.S. source income. Neither we nor Apache Finance intend to apply for
a ruling from the Internal Revenue Service regarding the debt securities.
Taxation of Dispositions. A U.S. holder that owns the debt securities as
capital assets will recognize capital gain or loss, except as described below
with respect to certain accrued but unpaid interest or market discount, upon a
sale or other disposition of the debt securities in an amount equal to the
difference between the U.S. holder's amount realized and its adjusted tax basis
in the debt securities. The capital gain or loss recognized by a U.S. holder on
a sale or other disposition of the debt securities will be:
- short-term if the debt securities have been held for 12 months or less;
or
- long-term if the debt securities have been held for more than 12 months.
A U.S. holder of a debt security may recognize capital gain or loss equal
to the difference between the fair market value of the debt security and the
U.S. holder's adjusted tax basis in the debt security if:
- Apache Finance 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;
- we assume the obligations of Apache Finance under any series of debt
securities;
- Apache Finance exercises its option to redeem the debt securities; or
- Apache Finance assigns its obligations under any series of debt
securities to any other person.
As described above, the indenture provides that, if a U.S. holder, other than
certain tax-exempt entities, recognizes gain as a result of any of the
transactions described above, Apache Finance or any person assuming our or
Apache Finance's obligations as part of the transaction, must indemnify the U.S.
holder for any tax imposed on the U.S. holder as a result of the transaction.
A U.S. holder will also recognize gain on disposition of a debt security in
the amount of:
- any accrued but unpaid interest on the security; and
- the amount of any market discount associated with the security.
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Any accrued but unpaid interest or accrued market discount not previously
included in the U.S. holder's income will be treated as ordinary interest
income.
Original Issue Discount. The debt securities may be issued with "original
issue discount." U.S. holders of the debt securities must 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, subject to a statutorily defined de minimis
exception. 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 is the total of all payments to be made on
the debt security 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 Apache Finance, at least annually at
a single fixed rate that appropriately takes into account the time between
payments.
U.S. 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 it holds the debt securities. 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 debt security's term, as long as 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
U.S. holders of the debt securities will include original issue discount in
income as it accrues, actual payments of interest, other than qualified stated
interest, on the debt securities issued at a discount will not trigger any
additional interest income to the holders.
Information Reporting and Backup Withholding. Apache Finance will provide
annual information statements to U.S. holders of the debt securities and
information returns to the Internal Revenue Service regarding the amount of
original issue discount, if any, that accrue on the debt securities during the
year.
Apache Finance, its paying agent, or other withholding agent may be
required to withhold and remit to the Internal Revenue Service 31 percent of the
interest payments on the debt securities if the Internal Revenue Service
notifies Apache Finance, its paying agent, or other withholding agent that any
U.S. holder is subject to backup withholding, or if the U.S. holder:
- fails to provide a taxpayer identification number;
- provides an incorrect taxpayer identification number;
- fails to certify that the holder is not subject to backup withholding; or
- otherwise fails to comply with applicable requirements of the backup
withholding rules.
Certain U.S. holders are not subject to these backup withholding rules. A U.S.
holder may credit amounts paid as backup withholding against its United States
federal income tax liability.
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Non-U.S. Holders
A non-U.S. holder will not be subject to United States federal income taxes
on payments of principal, premium, if any, or interest, including original issue
discount, if any, on a debt security, unless the non-U.S. holder is:
- a direct or indirect 10 percent or greater shareholder of Apache;
- a controlled foreign corporation related to Apache; or
- a bank receiving interest described in Section 881(c)(3)(A) of the
Internal Revenue Code of 1986.
To qualify for the exemption from taxation, the last United States payor in
the chain of payment before payment to a non-U.S. holder, i.e., the "withholding
agent," must have received in the year in which a payment of interest or
principal occurs, or in either of the two preceding calendar years, a statement
that:
- is signed by the beneficial owner of the debt security under penalties of
perjury;
- certifies that the owner is not a U.S. holder; and
- provides the name and address of the beneficial owner.
This statement is generally provided on Form W-8 or a substantially similar
form.
Generally, a non-U.S. holder will not be subject to United States federal
income taxes on any amount that constitutes capital gain upon sale or
disposition of a debt security, unless:
- the gain is effectively connected with a U.S. trade or business;
- subject to certain exceptions, the non-U.S. Holder is an individual who
holds the debt security as a capital asset and is present in the United
States for 183 days or more in the year of sale or disposition; or
- the non-U.S. Holder is subject to tax under provisions of United States
federal income tax law that applies to certain U.S. expatriates,
including certain former U.S. citizens or residents.
Certain other exceptions may apply, and a non-U.S. holder should consult its own
tax advisor in this regard.
On October 6, 1997, the United States Department of Treasury issued final
regulations dealing with withholding tax on income paid to foreign persons,
backup withholding and related matters. These regulations generally attempt to
unify certification requirements and modify reliance standards. These
regulations generally will be effective for payments made after December 31,
2000, subject to certain transition rules. Prospective investors should consult
their own tax advisors with respect to these regulations.
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
It is the opinion of Bennett Jones, Calgary, Alberta, Canada, special
Canadian tax counsel to Apache, that the following summary addresses the
material Canadian federal income tax considerations to persons who are
non-residents of Canada of purchasing, owning and disposing of the debt
securities. This summary is based on the current provisions of the Income Tax
Act (Canada) (the "ITA") and the regulations thereunder, the understanding of
Bennett Jones of the current assessing and administrative practices of Revenue
Canada, Customs, Excise and Taxation ("Revenue Canada") and all specific
proposals to amend the ITA and the regulations thereunder publicly announced by
the Minister of Finance (Canada) before the date of this prospectus. This
summary does not otherwise take into account or anticipate changes in the law or
in the assessment and administrative practices of Revenue Canada, whether by
judicial,
29
<PAGE> 31
governmental or legislative decision or action, nor does it take into account
tax legislation or considerations of any province or territory of Canada or any
jurisdiction other than Canada. This summary is of a general nature only and is
not intended to be, and should not be interpreted as, legal or tax advice to any
holder of debt securities.
The payment of interest, premium, if any, and principal by Apache Finance
on the debt securities to initial holders who are non-residents of Canada with
whom we and Apache Finance are dealing at arm's length, within the meaning of
the ITA, at the time of making the payment will be exempt from non-resident
withholding tax under the ITA.
No other taxes on income (including capital gains) will be payable under
the ITA in respect of the holding, repayment, redemption or disposition of the
debt securities, or the receipt of interest, premium, if any, or principal
thereon by holders who are not resident, nor deemed to be resident, in Canada at
any time when debt securities are owned by those holders and who, for the
purposes of the ITA, do not use or hold and are not deemed to use or hold the
debt securities in carrying on business in Canada. However, in certain
circumstances, any holders who are non-resident insurers carrying on an
insurance business in Canada and elsewhere may be subject to tax under the ITA
in respect of the holding, repayment, redemption or disposition of the debt
securities, or the receipt of interest, premium, if any, or principal thereon.
PLAN OF DISTRIBUTION
We and Apache Finance may sell the securities through agents, underwriters
or dealers, or directly to one or more purchasers without using underwriters or
agents.
We and Apache Finance may designate agents who agree to use their
reasonable efforts to solicit purchases for the period of their appointment or
to sell securities on a continuing basis.
If we and Apache Finance use underwriters for a sale of securities, the
underwriters will acquire the securities for their own account. The underwriters
may resell the securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the
securities will be subject to the conditions set forth in the applicable
underwriting agreement. The underwriters will be obligated to purchase all the
securities of the series offered if any of the securities of that series are
purchased. Any initial public offering price and any discounts or concessions
allowed or re-allowed or paid to dealers may be changed from time to time.
Underwriters, dealers and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us or Apache Finance and any profit
on their resale of the securities may be treated as underwriting discounts and
commissions under the Securities Act. The applicable prospectus supplement will
identify any underwriters, dealers or agents and will describe their
compensation. We or Apache Finance may have agreements with the underwriters,
dealers and agents to indemnify them against certain civil liabilities,
including liabilities under the Securities Act. Underwriters, dealers and agents
may engage in transactions with or perform services for us or our subsidiaries
in the ordinary course of their businesses.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement, each
class or series of securities will be a new issue with no established trading
market. We and Apache Finance may elect to list any other class or series of
securities on any exchange, but we are not obligated to do so. It is possible
that one or more underwriters may make a market in a class or series of
securities, but the underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. We and Apache Finance
cannot give any assurance as to the liquidity of the trading market for any of
the securities.
30
<PAGE> 32
STABILIZATION ACTIVITIES
Any underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act. Over-allotment involves sales in excess of
the offering size, which create a short position. Stabilizing transactions
permit bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. Short-covering transactions involve purchases
of the securities in the open market after the distribution is completed to
cover short positions. Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the securities originally sold by the dealer are
purchased in a covering transaction to cover short positions. Those activities
may cause the price of the securities to be higher than it would otherwise be.
If commenced, the underwriters may discontinue any of the activities at any
time.
LEGAL MATTERS
Certain U.S. legal matters regarding the offering of the securities, other
than United States federal or state securities laws, have been passed upon by
Z.S. Kobiashvili, our and Apache Finance's Vice President and General Counsel.
As of the date of this prospectus, Mr. Kobiashvili holds employee stock options
to purchase 56,550 shares of Apache common stock, of which options to purchase
30,125 shares are currently exercisable, and holds a conditional grant under
Apache's 1996 Share Price Appreciation Plan relating to 18,900 shares of Apache
common stock, none of which is vested. In addition, other customary legal
matters relating to the offering of the securities, including matters relating
to our due incorporation, legal existence and authorized capitalization, will be
passed upon for us and Apache Finance by Mr. Kobiashvili, Chamberlain, Hrdlicka,
White, Williams & Martin, Houston, Texas, Bennett Jones, Calgary, Alberta,
Canada, or McInnes Cooper & Robertson, Nova Scotia, Canada. Unless otherwise
specified in the accompanying prospectus supplement, certain U.S. legal matters
will be passed upon for any underwriters or agents by Brown & Wood LLP, New
York, New York.
EXPERTS
The audited consolidated financial statements of Apache, incorporated by
reference into this prospectus, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in accounting and auditing in giving said report.
The information incorporated by reference into this prospectus regarding
the total proved reserves of Apache was prepared by Apache and reviewed by Ryder
Scott Company Petroleum Engineers, as stated in their letter reports, and is
incorporated by reference in reliance upon the authority of said firm as experts
in these matters. The information incorporated by reference into this prospectus
regarding the total estimated proved reserves acquired from Texaco Exploration
and Production Inc. was prepared by Apache and reviewed by Ryder Scott and is
incorporated by reference in reliance upon the authority of that firm as experts
in these matters. The information incorporated by reference into this prospectus
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 incorporated by reference in
reliance upon the authority of that firm as experts in these matters.
A portion of the information incorporated by reference in this prospectus
regarding the total proved reserves of Aquila Energy Resources Corporation
acquired by Apache was prepared by Netherland, Sewell & Associates, Inc. as of
December 31, 1994, as stated in their letter report, and is incorporated by
reference in reliance upon the authority of that firm as experts in those
matters. Netherland, Sewell did not review any of the reserves of Aquila
acquired during 1995.
31
<PAGE> 33
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 securities are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $111,200
Rating agency fees.......................................... 15,000
Legal fees and expenses..................................... 350,000
Accounting fees and expenses................................ 75,000
Trustee's fees and expenses................................. 12,000
Printing and engraving...................................... 100,000
Miscellaneous............................................... 7,000
--------
Total............................................. $670,200
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
APACHE
Apache's restated certificate of incorporation provides that Apache shall,
to the full extent permitted under the Delaware General Corporation Law,
indemnify its officers, directors, employees and agents.
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 he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no 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 him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him. Apache 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.
Article VII of Apache's bylaws provides, in substance, that directors,
officers, employees and agents of Apache shall be indemnified to the extent
permitted by Section 145 of the Delaware General Corporation Law. Additionally,
Article Seventeen of Apache's restated certificate of incorporation eliminates
in certain
II-1
<PAGE> 34
circumstances the monetary liability of directors of Apache for a breach of
their fiduciary duty as directors. These provisions do not eliminate the
liability of a director
- for a breach of the director's duty of loyalty to Apache or its
stockholders;
- for acts or omissions by the director not in good faith;
- for acts or omissions by a director involving intentional misconduct or a
knowing violation of the law;
- under Section 174 of the Delaware General Corporation Law, which relates
to the declaration of dividends and purchase or redemption of shares in
violation of the Delaware General Corporation Law; and
- for transactions from which the director derived an improper personal
benefit.
APACHE FINANCE
The Articles of Association of Apache Finance provide, in substance, that
every director and officer of Apache Finance shall be indemnified by Apache
Finance against all costs, losses and expenses which such person may incur by
reason of any contract entered into, or any act or thing done, by him in such
capacity or in anyway in the discharge of his duties.
Nova Scotia law does not make any statutory provision for, nor impose any
statutory restriction upon, the ability of a company to indemnify directors and
officers.
Although the matter has not been judicially considered, the obligation to
indemnify may not extend to losses occasioned by a breach by a director of his
common law fiduciary duty to Apache Finance.
Reference is made to the form of underwriting agreements to be incorporated
by reference in this registration statement for a description of the
indemnification arrangements Apache and Apache Finance agree to in connection
with offerings of the securities registered by this registration statement.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1 -- The form of underwriting agreement will be filed as an
exhibit to a current report of Apache and incorporated in
this registration statement by reference.
*4.1 -- Form of Indenture among Apache, Apache Finance and The
Chase Manhattan Bank, as Trustee, governing the Debt
Securities and the Guarantees.
*5.1 -- Opinion of general counsel regarding legality of
securities being registered.
*5.2 -- Opinion of McInness, Cooper & Robertson regarding Apache
Finance Canada Corporation.
**8.1 -- Opinion of Chamberlain, Hrdlicka, White, Williams &
Martin as to certain United States federal income tax
matters.
**8.2 -- Opinion of Bennett Jones as to certain Canadian federal
income tax matters.
12.1 -- Statement of computation of ratios of earnings to fixed
charges and to combined fixed charges and preferred stock
dividends (incorporated by reference to Exhibit 12.1 to
Apache's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999, SEC File No. 1-4300).
**23.1 -- Consent of Arthur Andersen LLP, Houston, Texas.
**23.2 -- Consent of Ryder Scott Company Petroleum Engineers.
**23.3 -- Consent of Netherland, Sewell & Associates, Inc.
*23.4 -- Consent of general counsel (included in Exhibit 5.1).
</TABLE>
II-2
<PAGE> 35
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
**23.5 -- Consent of Chamberlain, Hrdlicka, White, Williams &
Martin (included in Exhibit 8.1).
**23.6 -- Consent of Bennett Jones (included in Exhibit 8.2).
*23.7 -- Consent of McInness, Cooper & Robertson (included in
Exhibit 5.2).
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> 36
ITEM 17. UNDERTAKINGS
1. Each of the undersigned registrants hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the 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 and 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculations of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(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 with or
furnished to the Commission by Apache pursuant to Sections 13 or 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(c) 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.
2. Each of the undersigned registrants hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
Apache's annual report pursuant to Sections 13(a) or 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 therein, 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. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrants have been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-4
<PAGE> 37
4. Each of the undersigned registrants hereby undertakes that:
(a) For the purpose of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrants pursuant to
Rules 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this Registration Statement as of the time it was declared
effective;
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
5. Each of the undersigned registrants hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Trust Indenture Act.
II-5
<PAGE> 38
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
By: /s/ RAYMOND PLANK*
------------------------------------
Raymond Plank,
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by an
attorney-in-fact on behalf of the persons listed, in the capacities and on the
date 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/ G. STEVEN FARRIS* Director
- -----------------------------------------------------
G. Steven Farris
/s/ RANDOLPH M. FERLIC* Director
- -----------------------------------------------------
Randolph M. Ferlic
/s/ EUGENE C. FIEDOREK* Director
- -----------------------------------------------------
Eugene C. Fiedorek
/s/ A. D. FRAZIER, JR.* Director
- -----------------------------------------------------
A. D. Frazier, Jr.
/s/ STANLEY K. HATHAWAY* Director
- -----------------------------------------------------
Stanley K. Hathaway
/s/ JOHN A. KOCUR* Director
- -----------------------------------------------------
John A. Kocur
/s/ GEORGE D. LAWRENCE JR.* Director
- -----------------------------------------------------
George D. Lawrence Jr.
/s/ MARY RALPH LOWE* Director
- -----------------------------------------------------
Mary Ralph Lowe
/s/ F. H. MERELLI* Director
- -----------------------------------------------------
F. H. Merelli
/s/ JOSEPH A. RICE* Director
- -----------------------------------------------------
Joseph A. Rice
*By: /s/ Z. S. KOBIASHVILI
------------------------------------------------
Z. S. Kobiashvili
Attorney-in-Fact
</TABLE>
Dated: November 11, 1999
<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Apache Finance
Canada Corporation 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 CANADA
CORPORATION
By: /s/ RAYMOND PLANK*
------------------------------------
Raymond Plank
Chairman
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed by an
attorney-in-fact on behalf of the persons listed, in the capacities and on the
date 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
Roger B. Plank (Principal Financial Officer)
/s/ THOMAS L. MITCHELL* Vice President and Controller
- ----------------------------------------------------- (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 F. CURRAN* Director
- -----------------------------------------------------
John F. Curran
/s/ JAMES G. SMELTZER* Director
- -----------------------------------------------------
James G. Smeltzer
*By: /s/ Z. S. KOBIASHVILI
------------------------------------------------
Z. S. Kobiashvili
Attorney-in-Fact
</TABLE>
Dated: November 11, 1999
<PAGE> 40
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<C> <S>
1.1 -- The form of underwriting agreement will be filed as an
exhibit to a current report of Apache and incorporated in
this registration statement by reference.
*4.1 -- Form of Indenture among Apache, Apache Finance and The
Chase Manhattan Bank, as Trustee, governing the Debt
Securities and the Guarantees.
*5.1 -- Opinion of general counsel regarding legality of
securities being registered.
*5.2 -- Opinion of McInness, Cooper & Robertson regarding Apache
Finance Canada Corporation.
**8.1 -- Opinion of Chamberlain, Hrdlicka, White, Williams &
Martin as to certain United States federal income tax
matters.
**8.2 -- Opinion of Bennett Jones as to certain Canadian federal
income tax matters.
12.1 -- Statement of computation of ratios of earnings to fixed
charges and to combined fixed charges and preferred stock
dividends (incorporated by reference to Exhibit 12.1 to
Apache's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999, SEC File No. 1-4300).
**23.1 -- Consent of Arthur Andersen LLP, Houston, Texas.
**23.2 -- Consent of Ryder Scott Company Petroleum Engineers.
**23.3 -- Consent of Netherland, Sewell & Associates, Inc.
*23.4 -- Consent of general counsel (included in Exhibit 5.1).
**23.5 -- Consent of Chamberlain, Hrdlicka, White, Williams &
Martin (included in Exhibit 8.1).
**23.6 -- Consent of Bennett Jones (included in Exhibit 8.2).
*23.7 -- Consent of McInness, Cooper & Robertson (included in
Exhibit 5.2).
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 4.1
APACHE FINANCE CANADA CORPORATION,
Company
APACHE CORPORATION,
Guarantor
to
THE CHASE MANHATTAN BANK,
Trustee
---------------
INDENTURE
---------------
Dated as of ____________, 1999
Debt Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
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
</TABLE>
- -----------------------------
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
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.......................................................4
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...............................................................................5
CUSIP number...........................................................................5
Defaulted Interest.....................................................................5
Dollars or $...........................................................................5
ECU....................................................................................5
Euro...................................................................................5
European Monetary System...............................................................5
European Union.........................................................................5
Event of Default.......................................................................5
Foreign Currency.......................................................................5
GAAP...................................................................................5
Government Obligations.................................................................5
Guarantee..............................................................................6
Guarantor..............................................................................6
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
Guarantor Request and Guarantor Order..................................................6
Holder.................................................................................6
Indebtedness...........................................................................6
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..........................................................8
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............................................................................9
Paying Agent..........................................................................10
Person................................................................................10
Place of Payment......................................................................10
Predecessor Security..................................................................10
Redemption Date.......................................................................10
Redemption Price......................................................................10
Registered Security...................................................................10
Regular Record Date...................................................................11
Required Currency.....................................................................11
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
Successor.............................................................................12
Successor Additional Amounts..........................................................12
Trust Indenture Act...................................................................13
Trustee...............................................................................13
United States.........................................................................13
</TABLE>
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United States Alien...................................................................13
U.S. Depository or Depository.........................................................13
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...................................................................15
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
Section 201. Forms Generally...................................................................21
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
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; Certain Additional Amounts Preserved..........................37
Section 308. Persons Deemed Owners.............................................................38
Section 309. Cancellation......................................................................39
Section 310. Computation of Interest...........................................................39
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ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge........................................................40
Section 402. Defeasance and Covenant Defeasance................................................41
Section 403. Application of Trust Money........................................................46
Section 404. Reinstatement.....................................................................46
ARTICLE FIVE
REMEDIES
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..................................................51
Section 505. Trustee May Enforce Claims without Possession of Securities,
Guarantees or Coupons.............................................................52
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................................................54
Section 510. Rights and Remedies Cumulative....................................................54
Section 511. Delay or Omission not Waiver......................................................54
Section 512. Control by Holders of Securities..................................................54
Section 513. Waiver of Past Defaults...........................................................55
Section 514. Waiver of Stay or Extension Laws..................................................55
Section 515. Undertaking for Costs.............................................................56
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.........................................................56
Section 602. Notice of Defaults................................................................58
Section 603. Not Responsible for Recitals or Issuance of Securities............................58
Section 604. May Hold Securities...............................................................58
Section 605. Money Held in Trust...............................................................59
Section 606. Compensation and Reimbursement....................................................59
Section 607. Corporate Trustee Required; Eligibility...........................................60
Section 608. Resignation and Removal; Appointment of Successor.................................60
Section 609. Acceptance of Appointment by Successor............................................62
Section 610. Merger, Conversion, Consolidation or Succession to Business.......................63
Section 611. Appointment of Authenticating Agent...............................................63
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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..............................................................65
Section 702. Preservation of Information; Communications to Holders............................66
Section 703. Reports by Trustee................................................................66
Section 704. Reports by Company and Guarantor..................................................66
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Guarantor May Consolidate, Etc., Only on Certain Terms............................67
Section 802. Company May Consolidate, etc., Only on Certain Terms..............................68
Section 803. Successor Person Substituted for Company or Guarantor.............................70
Section 804. Assumption by the Guarantor of the Company's Obligations..........................71
Section 805. Indemnification Procedure.........................................................71
ARTICLE NINE
SUPPLEMENTAL INDENTURES
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.................................................76
Section 905. Reference in Securities to Supplemental Indentures................................76
Section 906. Conformity with Trust Indenture Act...............................................76
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and Additional Amounts. .............76
Section 1002. Maintenance of Office or Agency..................................................77
Section 1003. Money for Securities Payments to Be Held in Trust................................78
Section 1004. Additional Amounts...............................................................80
Section 1005. Limitation on Liens..............................................................81
Section 1006. Limitation on Sale/Leaseback Transactions........................................84
Section 1007. Corporate Existence..............................................................85
Section 1008. Waiver of Certain Covenants......................................................85
Section 1009. Company Statement as to Compliance; Notice of Certain Defaults...................85
</TABLE>
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
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................................87
Section 1104. Notice of Redemption.............................................................87
Section 1105. Deposit of Redemption Price......................................................89
Section 1106. Securities Payable on Redemption Date............................................89
Section 1107. Securities Redeemed in Part......................................................90
ARTICLE TWELVE
REPAYMENT AT THE OPTION OF HOLDERS
Section 1201. Applicability of Article.........................................................90
ARTICLE THIRTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1301. Applicability of Article.........................................................91
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. Purposes for Which Meetings May Be Called........................................91
Section 1402. Call, Notice and Place of Meetings...............................................92
Section 1403. Persons Entitled to Vote at Meetings.............................................92
Section 1404. Quorum; Action...................................................................93
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings. ............94
Section 1406. Counting Votes and Recording Action of Meetings..................................95
ARTICLE FIFTEEN
PURCHASES OF SECURITIES UPON CHANGE IN CONTROL
Section 1501. Purchase of Securities at Option of the Holder upon Change in Control ...........94
Section 1502. Effect of Change in Control Purchase Notice......................................98
Section 1503. Deposit of Change in Control Purchase Price......................................99
Section 1504. Covenant to Comply With Securities Laws Upon Purchase of Securities .............99
Section 1505. Repayment to the Company.........................................................99
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ARTICLE SIXTEEN
GUARANTEES
Section 1601. Guarantee.......................................................................100
Section 1602. Execution and Delivery of Guarantees............................................101
ARTICLE SEVENTEEN
MISCELLANEOUS
Section 1701. Submission to Jurisdiction......................................................102
Section 1702. Stamp Duty......................................................................103
</TABLE>
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<PAGE> 10
INDENTURE, dated as of _______________, 1999 (the
"Indenture"), among APACHE FINANCE CANADA CORPORATION, an unlimited liability
company duly organized and existing under the laws of Nova Scotia, Canada (the
"Company"), having its principal executive office located at 700-9th Ave. S.W.,
Calgary, Alberta, Canada T2P 3V4, APACHE CORPORATION, a corporation duly
organized and existing under the laws of the State of Delaware (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 (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 (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.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH:
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> 12
"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, as the case may be, 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.
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<PAGE> 13
"Change in Control Purchase Price" has the meaning specified
in Section 1501.
"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 and Euro) 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 and Euro 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 and Euro 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.
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<PAGE> 14
"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 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 Services, 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.
"Euro" means the lawful currency of the member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community, as amended by the Treaty on European Union.
"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 and Euro, 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)
5
<PAGE> 15
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 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
6
<PAGE> 16
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 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.
7
<PAGE> 17
"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 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.
8
<PAGE> 18
"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;
(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
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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 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.
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"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.
"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 this 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
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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 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.
"Successor" shall have the meaning set forth in Section 802.
"Successor Additional Amounts" shall have the meaning set
forth in Section 802.
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"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 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 (i) a foreign corporation, (ii) a
non-resident alien individual, (iii) a non-resident alien fiduciary of a foreign
estate, (iv) any trust unless (A) a court within the United States may exercise
primary supervision over the trust's administration, and (B) one or more United
States Aliens has the authority to control all substantial decisions of the
trust, or (v) a foreign partnership one or more of the members of which is, for
United States Federal income tax purposes, a Person described in any of clauses
(i) through (iv) above.
"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
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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.
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
Guarantor or the Company, as the case may be, 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.
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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 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 may 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
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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.
(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
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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.
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
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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
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 such 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 any 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
any Guarantee, 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.
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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 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
or the Guarantor, as the case may be, 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, the President or any 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 his or her 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 Person 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
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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 of
such Security and of the Indenture referred to therein. In case of the
failure of Apache Finance Canada Corporation, an unlimited liability
company organized under the laws of Nova Scotia, Canada (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
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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.
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 of the Security
upon which this Guarantee is endorsed.
Apache Corporation
By:
-----------------------------
Title:
--------------------------
Attest:
- -------------------------
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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.
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.
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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 of the Company, an Officers' Certificate of the Company 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;
(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);
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(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 the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
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(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;
(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)
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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 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.
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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, one of its Directors or one of its Vice
Presidents under its corporate seal reproduced thereon and attested by its
Secretary, its Treasurer or one of its Assistant Secretaries or Assistant
Treasurers. 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 any Coupons appertaining thereto, bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities 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 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
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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) Guarantees, when executed under the Guarantor's corporate
seal and attested by duly authorized officers of the Guarantor and
endorsed upon a Security that is authenticated and delivered by the
Trustee and issued by the Company 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.
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
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<PAGE> 40
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
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<PAGE> 41
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 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 Guarantees duly endorsed
thereon.
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 Guarantees duly endorsed thereon.
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
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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 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
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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 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 of such Special Record Date and, in the name and at the
expense of the Company shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to 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, in the name and at the expense of the Company cause a
similar notice to be published
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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 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.
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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 of this
Section 402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section
402 in respect
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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, such Securities and the related Guarantees from which the Company or
the Guarantor, as the case may be, 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 and the related
Guarantees, 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 or the
Guarantor makes any payment of principal of or any premium or interest on any
such Security or the related Guarantee following reinstatement of its
obligations, the Company or the Guarantor, as the case may be, 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, New York, New York time, 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, the Guarantor or any other 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 the 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 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 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.
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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 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.
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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.
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;
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(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
(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.
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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 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,
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(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
(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.
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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).
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)
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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
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, the
Guarantor 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.
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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.
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 and the Guarantor, 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.
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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, jointly and severally,
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 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.
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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.
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:
(i) 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
(ii) 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
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(iii) 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, (A) 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 (B) 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 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.
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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 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
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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
(a) or (b) 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 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
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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 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.
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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.
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.
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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 none of
the Company, the Trustee, the Guarantor, 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.
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 or 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
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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 (a)
and (b) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
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 their 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 of the Guarantor 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
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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. Company May Consolidate, etc., Only on Certain
Terms.
(a) The Company 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:
(1) any Person formed by such consolidation or into
which the Company is merged or to whom the Company 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 the Company and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such
transaction, 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 recognized by 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
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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 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 the
Company 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
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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) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
(b) The Company 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 the Company with
respect to such series of Securities, provided that the conditions set forth in
Section 802(a) that would apply to the merger of the Company 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.
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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 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 recognized by 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
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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 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
recognized by 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 product of any gain recognized as a
result of the Indemnifiable Transaction and the highest marginal U.S. income tax
rate in effect at the time of such Indemnifiable Transaction (the
"Indemnification Amount"). 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:
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(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 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
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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.
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(a) and permitted
by Section 901(a)), 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
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(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, or 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 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.
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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 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.
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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 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
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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 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.
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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 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
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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.
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 or
non-residents of Canada 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. Each of the Company and the Guarantor,
jointly and severally, 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.
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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, 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;
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(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 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:
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(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
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
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(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.
None of the Company, the Guarantor or 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, 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, as the case may be, 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, as the case may be, 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
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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.
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
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(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.
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.
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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.
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,
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(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,
(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.
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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, 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
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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.
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
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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.
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.
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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 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.
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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.
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.
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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 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
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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 of the Guarantor 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
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
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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.
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
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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 Company.
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).
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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).
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
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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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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.
The Guarantees 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
the Guarantor 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, 111 8th Avenue, New York, New York 10011 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, 111 8th Avenue, New York, New York 10011)
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 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
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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 CANADA CORPORATION
By:
-------------------------------------
Name: Roger B. Plank
Title: Vice President, Chief Financial Officer
and a Director
Attest:
By:
---------------------------
Name: Cheri L. Peper
Title: Secretary
103
<PAGE> 113
[SEAL] APACHE CORPORATION
Attest:
By By
-------------------------------------- -----------------------------
Name: Cheri L. Peper Name: Matthew W. Dundrea
Title: Secretary Title: Vice President and Treasurer
104
<PAGE> 114
[SEAL] THE CHASE MANHATTAN BANK,
as Trustee
Attest:
By By
-------------------------------------- -----------------------------
Name: Glenn G. McKeever Name: Andrew M. Deck
Title: Senior Trust Officer Title: Vice President
105
<PAGE> 115
STATE OF TEXAS
: SS.:
COUNTY OF HARRIS
On the ___ day of __________, 1999, 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 TEXAS
: SS.:
COUNTY OF HARRIS
On the ___ day of __________, 1999, before me personally came
Roger B. Plank, to me known, who, being by me duly sworn, did depose and say
that he is a Director of APACHE FINANCE CANADA CORPORATION, an unlimited
liability company organized under the laws of Nova Scotia, Canada, 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]
106
<PAGE> 116
STATE OF NEW YORK
: SS.:
COUNTY OF NEW YORK
On the ___ day of __________, 1999, before me personally came
Andrew M. Deck, to me known, who, being by me duly sworn, did depose and say
that he is a Vice President 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]
107
<PAGE> 1
EXHIBIT 5.1
[APACHE CORPORATION LETTERHEAD]
November 11, 1999
Apache Corporation
2000 Post Oak Blvd., Suite 100
Houston, Texas 77056-4400
Lades 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 registration under the Securities Act of 1933, as amended, of
$400,000,000 aggregate principal amount of the senior unsecured debt securities
(the "Securities") of Apache Finance Canada Corporation, a Nova Scotia unlimited
liability company and an indirect wholly-owned subsidiary of the Company (the
"Issuer"), described in the registration statement on Form S-3 (the
"Registration Statement") of the Company and the Issuer. The 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
to be named as underwriters therein ("Underwriting Agreement"). The 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 Securities are to
be irrevocably and unconditionally guaranteed (the "Guarantees") by the Company.
In connection herewith, I have examined the Registration Statement
covering the 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 by-laws of the Company, each as amended to date, the
corporate proceedings with respect to the offering of the 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 presented to be 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
November 11, 1999
Page 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 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 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 above regarding the enforceability of the
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 (i) requirements that claims with respect to any Securities
denominated other than in U.S. Dollars (or a foreign currency or composite
currency 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 (ii)
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 McInnes,
Cooper & Robertson, filed as Exhibit 5.2 to the Registration Statement, as to
matters governed by the laws of Canada and the Province of Nova Scotia.
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 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,
<PAGE> 1
EXHIBIT 5.2
MCINNES COOPER & ROBERTSON
S I N C E 1 8 5 9 BARRISTERS, SOLICITORS & TRADE MARK AGENTS
- --------------------------------------------------------------------------------
SUMMIT PLACE
1601 LOWER WATER STREET
POST OFFICE BOX 730
HALIFAX, NOVA SCOTIA
CANADA B3J 2V1
Marcia L. Brennan T. 902-425-6500
Direct Dial: 902-424-1304 F. 902-425-6350
e-mail: [email protected] WWW.MCRLAW.COM
Our File: BH-403
November 11, 1999
APACHE CORPORATION
2000 Post Oak Boulevard
Suite 100
Houston, Texas 77056-4400
Dear Sirs:
RE: FORM S-3 REGISTRATION STATEMENT
We have acted as Nova Scotia counsel to Apache Finance Canada Corporation
(the "Company") in connection with a Registration Statement on Form S-3
(Registration No.'s 333-90147 and 333-90147-01) (the "Registration Statement")
under the U.S. Securities Act of 1933, as amended (the "Securities Act")
relating to the issuance by the Company of an aggregate of up to U.S.
$400,000,000 of debt securities (the "Debt Securities"). This opinion is
provided pursuant to an indenture in the form filed as Exhibit 4.1 to the
Registration Statement among the Chase Manhattan Bank, as Trustee, the Company
and Apache Corporation.
We have examined:
(i) the Registration Statement as filed with the Securities and Exchange
Commission;
(ii) the Memorandum of Association and Articles of Association of the
Company, as amended from time to time;
(iii) a Resolution signed by the Directors of the Company on October 29,
1999 with respect to the issuance of the Debt Securities.
We have also obtained and relied upon a certificate issued by the Registrar
of Joint Stock companies at Halifax on November 4, 1999.
<PAGE> 2
MCINNES COOPER & ROBERTSON Page 2
BH-403
November 11, 1999
We have also examined such statutes, public records and other documents and
instruments as we have deemed necessary or appropriate to express the opinions
herein. We have also considered such questions of law as we have deemed relevant
or necessary as a basis for the opinions herein.
For purposes of giving this opinion, we have assumed the following:
a) the accuracy of the information provided by government officials, agencies
and authorities;
b) 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;
c) that all relevant documents are within the capacity and powers of, and
have been validly authorized, by and are binding on the parties to them
other than the Company;
d) that insofar as any obligation is to be performed in any jurisdiction other
than the Province of Nova Scotia, its performance will not be illegal or
unenforceable under the laws of that jurisdiction; and
e) that each relevant document has been duly executed and delivered and
constitutes or will constitute legal, valid and binding obligations of the
parties under their respective governing laws, enforceable in competent
courts of such jurisdictions.
Based upon the foregoing and subject to the limitations set forth herein,
it is our opinion that:
1. the Company is duly incorporated as an unlimited company under the laws of
the Province of Nova Scotia;
2. under current law, the Company has the corporate power and authority to
issue the Debt Securities and the issuance of the Debt Securities has been
duly authorized by the Company.
The opinion expressed herein is subject to the following qualifications:
a) Our opinion is limited solely to the laws of the Province of Nova Scotia and
the laws of Canada applicable thereto and we express no opinion on the laws of
any other jurisdiction.
b) While we express no opinion as to enforceability, we point out that the
enforceability of the Debt Securities will be subject to applicable bankruptcy,
insolvency, preference, moratorium, reorganization and other laws in effect from
time to time affecting creditors' rights or debtors' obligations generally and
to general equitable principles, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing and to the availability
of equitable remedies, which are in the discretion of the courts.
c) Our opinion is rendered solely for your benefit in connection with the
issuance of the Debt Securities as contemplated by the Registration Statement.
Our opinion may not be used or relied on by any other
<PAGE> 3
MCINNES COOPER & ROBERTSON Page 3
BH-403
November 11, 1999
person or firm, 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.
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 very truly,
MCINNES COOPER & ROBERTSON
