<PAGE> 1
Filed Pursuant to Rule 424(b)(2)
Registration No. 333-39973
333-39973-01
PROSPECTUS SUPPLEMENT
(To Prospectus dated November 24, 1997)
[APACHE LOGO] $100,000,000
APACHE FINANCE PTY LTD
(ACN 080 571 900)
7% NOTES DUE 2009
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
APACHE CORPORATION
------------------
The Notes are senior unsecured obligations of Apache Finance Pty Ltd. The
Notes will mature on March 15, 2009. Apache Finance will pay interest on the
Notes on March 15 and September 15 of each year to registered holders of the
Notes on the preceding March 1 or September 1, as the case may be. The first
interest payment will be made on September 15, 1999. The Notes are irrevocably
and unconditionally guaranteed by Apache Corporation. Apache Finance may redeem
all of the Notes at a price equal to the principal amount of the Notes, plus
accrued interest, if certain tax law changes require the payment of Additional
Amounts (as described in the accompanying prospectus). See "Description of Notes
and Guarantees."
------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus supplement or the accompanying prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
------------------
<TABLE>
<CAPTION>
PER NOTE TOTAL
-------- -----------
<S> <C> <C>
Public Offering Price 99.337% $99,337,000
Underwriting Discount .650% $ 650,000
Proceeds to Apache Finance (before expenses) 98.687% $98,687,000
</TABLE>
Interest on the Notes will accrue from March 5, 1999 to date of delivery.
------------------
The underwriters are offering the Notes subject to various conditions. The
underwriters expect to deliver the Notes in book-entry form only through the
facilities of The Depository Trust Company against payment for the Notes in New
York, New York on or about March 5, 1999.
------------------
SALOMON SMITH BARNEY
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
March 2, 1999
<PAGE> 2
IMPORTANT NOTICE ABOUT INFORMATION IN THIS PROSPECTUS SUPPLEMENT
AND THE ACCOMPANYING PROSPECTUS
This document is in two parts. The first part is this prospectus
supplement, which describes the terms of the Notes. The second part is the
accompanying prospectus, which gives more general information, some of which may
not apply to the Notes. Generally, the term "prospectus" refers to both parts
combined.
IF THE DESCRIPTION OF THE NOTES VARIES BETWEEN THIS PROSPECTUS SUPPLEMENT
AND THE ACCOMPANYING PROSPECTUS, YOU SHOULD RELY ON THE INFORMATION IN THIS
PROSPECTUS SUPPLEMENT.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS. NO
PERSON IS AUTHORIZED TO PROVIDE YOU WITH DIFFERENT INFORMATION OR TO OFFER THE
NOTES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD NOT ASSUME THAT
THE INFORMATION PROVIDED BY THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THIS
PROSPECTUS SUPPLEMENT. IN THIS PROSPECTUS SUPPLEMENT, "WE," "US," AND "OUR"
REFER TO APACHE CORPORATION AND ITS CONSOLIDATED SUBSIDIARIES, INCLUDING APACHE
FINANCE PTY LTD. UNLESS OTHERWISE STATED, THE DOLLAR AMOUNTS AND FINANCIAL DATA
CONTAINED IN THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS ARE
PRESENTED IN U.S. DOLLARS.
------------------
This prospectus includes cross references to captions where you can find
further related discussions. The following table of contents tells you where to
find these captions.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
Where You Can Find Additional Information................... S-3
Use of Proceeds............................................. S-3
Recent Developments......................................... S-3
Ratio of Earnings to Fixed Charges.......................... S-6
Description of Notes and Guarantees......................... S-6
Underwriting................................................ S-7
Experts..................................................... S-8
Legal Matters............................................... S-9
PROSPECTUS
Available Information....................................... 3
Information Incorporated by Reference....................... 3
The Company................................................. 5
The Issuer.................................................. 5
Use of Proceeds............................................. 5
Ratio of Earnings to Fixed Charges.......................... 5
Description of Debt Securities and Guarantees............... 6
DTC Book-Entry-Only System.................................. 24
Certain Tax Considerations.................................. 26
Plan of Distribution........................................ 30
Legal Matters............................................... 31
Experts..................................................... 31
</TABLE>
S-2
<PAGE> 3
WHERE YOU CAN FIND ADDITIONAL INFORMATION
The SEC allows Apache Corporation to "incorporate by reference" the
information Apache Corporation filed with them, which means that Apache
Corporation can disclose important information to you by referring to those
documents. Since November 24, 1997, the date of the prospectus accompanying this
prospectus supplement, Apache Corporation has filed the following documents with
the SEC, and is incorporating them by reference in this prospectus supplement:
(1) Annual Report on Form 10-K for the year ended December 31, 1997.
(2) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998,
June 30, 1998 and September 30, 1998.
(3) Current Report on Form 8-K, dated December 5, 1997, filed December 9,
1997 and amended December 17, 1997.
(4) Current Report on Form 8-K, dated and filed December 16, 1997.
(5) Current Report on Form 8-K, dated January 29, 1998, filed February 5,
1998.
(6) Current Report on Form 8-K, dated June 18, 1998, filed June 23, 1998.
(7) Current Report on Form 8-K, dated and filed August 18, 1998, amended
August 19, 1998 and August 25, 1998.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the Notes, which we
estimate to be approximately $98.5 million, to prepay a portion of the $151
million indebtedness (outstanding as of March 1, 1999) incurred under the
Australian portion of our $1 billion global credit facility. Two of Apache
Corporation's Australian subsidiaries are the borrowers under the Australian
portion of the global credit facility. The indebtedness to be prepaid was
incurred to finance our operations in Australia, including a portion of the
transaction with Novus Petroleum Limited described below. This prepayment will
reduce the principal amount of this indebtedness to approximately $52.5 million.
As of March 1, 1999, our weighted average interest rate on the debt to be
prepaid was approximately 5.12 percent. On June 12, 2002, $10.0 million of the
Australian portion of the global credit facility is scheduled to mature, with
the remaining $165.0 million maturing on June 12, 2003.
RECENT DEVELOPMENTS
ACQUISITIONS AND DIVESTITURES
On November 13, 1998, we entered into agreements to buy from subsidiaries
of Novus Petroleum Limited certain oil and gas interests in the Carnarvon Basin,
offshore Western Australia, for approximately $47.5 million, subject to closing
adjustments. The interests have proved reserves of approximately 5.8 million
barrels of oil equivalent and daily production of 2,400 barrels of oil
equivalent. The interests are located within the Harriet joint venture (which is
operated by Apache Corporation and includes production, processing and pipeline
infrastructure associated with the Varanus Island hub), the Airlie joint venture
(in which we held a prior interest and are the operator) and three other
exploration permit areas. The transaction closed in two stages, on December 18,
1998 and on January 29, 1999.
In several transactions with various buyers in 1998, we also sold largely
marginal properties located in North America containing 29.6 million equivalent
barrels of proved reserves for $131.1 million.
Following the Ampolex Group Transaction described in Apache Corporation's
1997 Annual Report on Form 10-K, we entered into an agreement with Hardy
Petroleum Limited (Hardy) under which Hardy agreed to purchase a 10 percent
interest in the East Spar field and related production facilities. This
transaction closed in January 1998 with a total sales price of approximately $63
million in cash. The Ampolex Group Transaction was recorded net of these
interests.
In June 1998, we formed a strategic alliance with Cinergy Corporation to
market substantially all of Apache Corporation's North American natural gas
production. We also sold our 57 percent interest in Producers Energy Marketing
LLC (known as ProEnergy) to Cinergy for 771,258 shares of Cinergy
S-3
<PAGE> 4
common stock that were subsequently sold for $26.1 million. ProEnergy will
continue to market our North American natural gas production for 10 years, with
an option to terminate after six years. During this period, we generally are
obligated to deliver most of our North American gas production to Cinergy and,
under certain circumstances, we may have to make payments to Cinergy if certain
throughput thresholds are not met. We recorded a $20.0 million deferred gain on
the sale of ProEnergy, which is being amortized over six years.
FULL COST CEILING TEST WRITE-DOWN
Under the full cost accounting rules of the SEC, we review the carrying
value of our proved oil and gas properties for impairment each quarter on a
country-by-country basis. Under these rules, capitalized costs of proved oil and
gas properties, net of accumulated depreciation, depletion and amortization and
deferred income taxes, may not exceed the present value of estimated future net
cash flows from proved oil and gas reserves, discounted at 10 percent, plus the
lower of cost or fair value of unproved properties included in the costs being
amortized, net of related tax effects. These rules generally require pricing
future oil and gas production at the unescalated oil and gas prices in effect at
the end of each fiscal quarter, and require a write-down if the "ceiling" is
exceeded, even if prices declined for only a short period of time. We recorded a
$243.2 million pre-tax, non-cash write-down of the carrying value of our U.S.
proved oil and gas properties as of December 31, 1998, due to these ceiling test
limitations. If oil and gas prices deteriorate from our year end realized
prices, it is likely that additional write-downs will occur in 1999. Write-downs
required by these rules do not impact cash flow from operating activities.
YEAR END OPERATING RESULTS
On February 2, 1998, we announced our earnings results for the quarter and
year ended December 31, 1998. The following table presents this information
together with the information for the same periods in 1997. This information is
not audited and is not necessarily indicative of the results that may be
expected for future periods. This information also should be read together with
Apache Corporation's consolidated financial statements and the notes thereto
incorporated by reference in this prospectus supplement. In addition, the
following information will be superseded in its entirety by our Annual Report on
Form 10-K for the year ended December 31, 1998, which will be filed on or before
March 31, 1999. See "Where You Can Find Additional Information."
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED
DECEMBER 31, DECEMBER 31,
-------------------- ----------------------
1998 1997 1998 1997
--------- -------- --------- ----------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS
AND OPERATIONS DATA)
<S> <C> <C> <C> <C>
FINANCIAL DATA:
Revenues..................................... $ 197,959 $318,856 $ 875,715 $1,176,273
Income (loss) attributable to common stock... $(160,600) $ 45,488 $(131,391) $ 154,896
Basic net income (loss) per common share..... $ (1.64) $ .50 $ (1.34) $ 1.71
Diluted net income (loss) per common share... $ (1.64) $ .48 $ (1.34) $ 1.65
Weighted average common shares outstanding... 97,765 91,864 98,066 90,677
OPERATIONS DATA:
Average Daily Production:
Oil (bbls)................................ 68,011 72,240 72,906 66,547
Natural gas (Mcf)......................... 576,709 620,079 590,108 608,872
Average Sales Price:
Oil (per bbl)............................. $ 10.88 $ 18.59 $ 12.66 $ 19.20
Natural gas (per Mcf)..................... $ 1.84 $ 2.51 $ 1.92 $ 2.28
</TABLE>
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1998 1997
------------ ------------
<S> <C> <C>
BALANCE SHEET DATA (PERIOD END):
Total debt................................................ $1,358,758 $1,518,580
Shareholders' equity...................................... $1,801,833 $1,729,177
</TABLE>
S-4
<PAGE> 5
We had a $160.6 million loss attributable to common stock for the fourth
quarter 1998 compared to income attributable to common stock of $45.5 million
for the same period in 1997. The loss resulted primarily from the effects of a
$243.2 million non-cash, pre-tax write-down of the carrying value of our U.S.
proved oil and gas properties. The write-down was caused by sharp declines in
oil and gas prices compared to the prices we received in 1997. See "-- Full Cost
Ceiling Test Write-down" above.
The fourth quarter 1998 basic net loss per common share of $1.64 contrasted
sharply with basic net income per common share of $.50 for the fourth quarter
1997. The basic net loss per common share of $1.34 for 1998 reflected a 178
percent decline from 1997.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The Notes may be recharacterized by the United States Internal Revenue
Service as debt of Apache Corporation. If the Notes are recharacterized, the
discussion under "Certain Tax Considerations -- United States Federal Income Tax
Considerations -- Taxation of Interest" in the accompanying prospectus will
continue to apply to U.S. holders of the Notes, except that the interest income
will be treated as U.S. source income for United States federal income tax
purposes. 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 Note, unless the non-U.S. holder is a direct or
indirect 10 percent or greater shareholder of Apache Corporation, a controlled
foreign corporation related to Apache Corporation 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 (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 Note under penalties of perjury,
- certifies that such owner is not a U.S. holder, and
- provides the name and address of the beneficial owner.
Generally, a non-U.S. holder will not be subject to United States federal
income taxes on any amount which constitutes capital gain upon sale or
disposition of a Note, unless
- such gain is U.S. trade or business income,
- subject to certain exceptions, the non-U.S. Holder is an individual who
holds the Notes 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 pursuant to the provisions of U.S.
federal income tax law applicable to certain U.S. expatriates (including certain
former citizens or residents of the United States). Certain other exceptions may
apply, and a non-U.S. holder should consult its own tax advisor in this regard.
Final regulations dealing with withholding tax on income paid to foreign
persons, backup withholding and related matters were issued by the United States
Department of Treasury on October 6, 1997. These regulations generally attempt
to unify certification requirements and modify reliance standards. These
regulations generally will be effective for payments made after December 31,
1999, subject to certain transition rules. Prospective investors are strongly
urged to consult their own tax advisors with respect to these regulations.
Gain or loss recognized by a U.S. holder on a sale or other disposition of
the Notes will be long-term if the Notes have been held for more than 12 months.
AUSTRALIAN TAX CONSIDERATIONS
Australia currently operates under two primary assessment Acts, the Income
Tax Assessment Act 1997 and the Income Tax Assessment Act 1936. References to
the Tax Act in this document, the accompanying prospectus, the Underwriting
Agreement, the Terms Agreement, the Indenture and any
S-5
<PAGE> 6
other relevant documentation, should, where appropriate, be read as a reference
to both the 1997 and 1936 Acts.
Since the date of the accompanying prospectus, the Australian tax
authorities have introduced draft interpretations of certain provisions of
Section 128F, and certain legislative amendments have also been proposed. These
interpretations and proposed legislative amendments are generally intended to
ease some of the restrictions in the section and conform to certain market
practices.
FORWARD-LOOKING STATEMENTS
Portions of the foregoing discussion of recent developments 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.
RATIO OF EARNINGS TO FIXED CHARGES
In addition to the ratios of earnings to fixed charges for the periods set
forth in the accompanying prospectus, our ratio of earnings to fixed charges for
the year ended December 31, 1997 was 2.93. For the year ended December 31, 1998,
earnings were inadequate to cover fixed charges by $236.8 million due to the
$243.2 million non-cash write-down of the carrying value of our U.S. proved oil
and gas properties.
DESCRIPTION OF NOTES AND GUARANTEES
Apache Finance will issue the Notes under the Indenture referred to in the
accompanying prospectus. The Notes will be issued in the form of a global note
registered in the name of The Depository Trust Company or its nominee, as
described in "DTC Book-Entry-Only System" in the accompanying prospectus. The
following description and the description in the accompanying prospectus is a
summary of the material provisions of the Notes and the Indenture. It does not
restate the Indenture in its entirety. Apache Finance urges you to read the
Indenture because it, and not this description, defines your rights as holders
of the Notes. Apache Finance has filed a copy of the Indenture as an exhibit to
the registration statement, which includes the accompanying prospectus.
This description of the Notes supplements, and, to the extent it is
inconsistent, replaces, the description of the general provisions of the Notes
and the Indenture in the accompanying prospectus. The Notes are "Debt
Securities" as that term is used in the accompanying prospectus.
With certain exceptions and pursuant to certain requirements set forth in
the Indenture, Apache Finance may discharge its obligations under the Indenture
with respect to the Notes as described under "Description of Debt Securities and
Guarantees -- Discharge, Defeasance and Covenant Defeasance" in the accompanying
prospectus.
PRINCIPAL, MATURITY AND INTEREST
The Notes will be senior unsecured obligations of Apache Finance. Apache
Corporation will irrevocably and unconditionally guarantee the Notes as to
principal, premium, if any, interest and Additional Amounts, if any.
The Notes will mature on March 15, 2009. Although Apache Finance is
offering $100,000,000 amount of the Notes, Apache Finance may issue and sell
additional principal amounts of the Notes in the
S-6
<PAGE> 7
future without the consent of the holders of the Notes. Any additional Notes,
together with these Notes, constitute a single series of Notes under the
Indenture.
Interest on the Notes will accrue at the rate of 7% per year and will be
payable semi-annually in arrears on March 15 and September 15 of each year,
commencing on September 15, 1999. We will make each interest payment to the
person in whose name the Notes are registered at the close of business on the
immediately preceding March 1 or September 1, as the case may be, whether or not
that date is a business day.
Interest on the Notes will accrue from March 5, 1999 and will be computed
on the basis of a 360-day year comprised of twelve 30-day months.
If any interest payment date, maturity date or redemption date falls on a
day that is not a business day, the payment will be made on the next business
day and, unless Apache Finance and Apache Corporation default on the payment, no
interest will accrue for the period from and after the interest payment date,
maturity date or redemption date.
If a "Change in Control," as defined in the Indenture, occurs, each holder
of Notes may elect to require Apache Finance to repurchase the holder's Notes.
If a holder makes this election, Apache Finance is obligated to purchase the
holder's Notes for their principal amount plus accrued interest to the purchase
date. See "Description of Debt Securities and Guarantees -- Issuer's Obligation
to Purchase Debt Securities on Change of Control" in the accompanying
prospectus.
OPTIONAL REDEMPTION
Apache Finance may redeem the Notes in whole but not in part, at the
principal amount of the Notes to be redeemed, plus accrued interest, in the
event of certain tax law changes requiring the payment of Additional Amounts.
See "Description of Debt Securities and Guarantees -- Redemption for Tax
Reasons" in the accompanying prospectus.
Apache Finance will mail any notice of a redemption between 30 to 60 days
before the redemption dates to holders of Notes to be redeemed. If less than all
the Notes are to be redeemed, the particular Note to be redeemed will be
selected by the Trustee by lot or by another method that the Trustee deems fair
and appropriate.
Unless Apache Finance and Apache Corporation default in payment of the
redemption price, on and after the redemption date, interest will cease to
accrue on the Notes or the portions of the Notes called for redemption.
Except as noted above, the Notes are not redeemable prior to maturity and
will not be subject to any sinking fund.
UNDERWRITING
Subject to the terms and conditions of the Underwriting Agreement and the
Terms Agreement, Apache Finance has agreed to sell to each of the underwriters
named below, and each of the underwriters has severally agreed to purchase, the
principal amount of Notes set forth opposite its name below.
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
UNDERWRITER OF NOTES
----------- ----------------
<S> <C>
Salomon Smith Barney Inc. .................................. $ 50,000,000
Chase Securities Inc. ...................................... 25,000,000
Goldman, Sachs & Co. ....................................... 25,000,000
------------
Total............................................. $100,000,000
============
</TABLE>
The Underwriting Agreement and the Terms Agreement provide that the
obligations of the underwriters to pay for and accept delivery of the Notes are
subject to the approval of certain legal
S-7
<PAGE> 8
matters by their counsel and to certain other conditions. The underwriters are
committed to take and pay for all of the Notes, if any are taken.
The underwriters propose to offer and sell the Notes directly to the public
at the public offering price shown on the cover page of this prospectus
supplement and to certain dealers at the public offering price less a concession
of not more than .40% of the principal amount of the Notes. The underwriters may
allow, and the dealers may reallow, a concession of not more than .25% of the
principal amount of the Notes on sales to certain other dealers.
The following table shows the underwriting discounts and commissions to be
paid to the underwriters by Apache Finance in connection with this offering
(expressed as a percentage of the principal amount of the Notes).
<TABLE>
<CAPTION>
PAID BY
APACHE FINANCE
--------------
<S> <C>
Per Note............................................... .650%
</TABLE>
In connection with the offering, Salomon Smith Barney Inc., on behalf of
the underwriters, may over-allot, or engage in syndicate covering transactions,
stabilizing transactions and penalty bids. Over-allotment involves syndicate
sales of Notes in excess of the principal amount of Notes to be purchased by the
underwriters in the offering, which creates a syndicate short position.
Syndicate covering transactions involve purchases of Notes in the open market
after the distribution has been completed in order to cover syndicate short
positions. Stabilizing transactions consist of certain bids or purchases of
Notes made for the purpose of preventing or retarding a decline in the market
price of the Notes while the offering is in progress. Penalty bids permit the
underwriters to reclaim a selling concession from a syndicate member when
Salomon Smith Barney Inc., in covering syndicate short positions or making
stabilizing purchases, repurchases Notes originally sold by that syndicate
member. These transactions may cause the price of the Notes to be higher than
the price that otherwise would exist in the open market in the absence of these
activities. These transactions may be made in the over-the-counter market or
otherwise and, if commenced, may be discontinued at any time.
Apache Finance estimates that its total expenses of this offering will be
approximately $216,000.
The underwriters and/or certain of their affiliates have performed and may
in the future perform certain investment banking and/or commercial banking
services for Apache Corporation and certain of its affiliates in the ordinary
course of business for which the underwriters have received or will receive
customary fees and expenses.
The Chase Manhattan Bank, the Trustee for the Notes, is the global
administrative agent and Australian syndication agent. Chase Securities Inc.
(one of the underwriters) and The Chase Manhattan Bank of Canada, affiliates of
The Chase Manhattan Bank, are the global arranger and Canadian syndication
agent, respectively, of certain portions of Apache Corporation's global credit
facility. The Chase Manhattan Bank and The Chase Manhattan Bank of Canada are
also lenders under that facility. The Chase Manhattan Bank is also the technical
bank for, and a lender under, the credit facility entered into by certain of
Apache Corporation's Egyptian subsidiaries. Chase Manhattan International
Limited, an affiliate of The Chase Manhattan Bank, is the facility agent for the
Egyptian credit facility. Chase Securities Inc. and Chase Manhattan PLC, an
affiliate of Chase Securities Inc., acted as arrangers for the Egyptian credit
facility.
Each of Apache Corporation and Apache Finance has agreed to indemnify the
underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, or to contribute to payments the underwriters may be
required to make in respect of any of those liabilities.
EXPERTS
The audited consolidated financial statements of Apache Corporation
incorporated by reference into this prospectus supplement have been audited by
Arthur Andersen LLP, independent public accountants,
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<PAGE> 9
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.
LEGAL MATTERS
Certain U.S. legal matters regarding the offering of the Notes, other than
United States federal or state securities laws, have been passed upon for Apache
Corporation by its Vice President and General Counsel, Z. S. Kobiashvili. As of
the date of this prospectus supplement, Mr. Kobiashvili owns 1,701 shares of
Apache Common Stock through Apache Corporation's 401(k) savings plan; holds
employee stock options to purchase 45,700 shares of Apache Common Stock, of
which 21,200 options are currently exercisable; and holds a conditional grant
under Apache Corporation's 1996 Share Price Appreciation Plan relating to 18,900
shares of Apache Common Stock, none of which is vested.
Certain U.S. legal matters will also be passed upon for Apache Corporation
and Apache Finance by Chamberlain, Hrdlicka, White, Williams & Martin, Houston,
Texas, and certain Australian legal matters will be passed upon for Apache
Corporation and Apache Finance by Arthur Robinson & Hedderwicks, Melbourne,
Victoria, Australia. Certain U.S. legal matters will be passed upon for the
underwriters by Brown & Wood LLP, New York, New York.
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<PAGE> 10
PROSPECTUS
$300,000,000 [APACHE
CORPORATION LOGO]
APACHE FINANCE PTY LTD
(ACN 080 591 900)
DEBT SECURITIES
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
APACHE CORPORATION
Apache Finance Pty Ltd, a proprietary company with limited liability organized
under the laws of the Australian Capital Territory, Australia (the "Issuer"),
and a wholly-owned indirect subsidiary of Apache Corporation (the "Company" or
"Apache"), intends from time to time to issue senior unsecured debt securities
("Debt Securities") in one or more series, at an aggregate initial offering
price not to exceed $300,000,000, at prices and on terms to be determined at or
prior to the time of sale. The specific designation, aggregate principal amount,
maturity, interest rate, method of distribution, and any prepayment or other
variable terms with regard to the Debt Securities in respect of which this
Prospectus is delivered will be, to the extent not set forth herein, set forth
in an accompanying Prospectus Supplement.
The Debt Securities will be irrevocably and unconditionally guaranteed (the
"Guarantees") by the Company (in such capacity, the "Guarantor"), and the
Guarantees will rank on a parity with all unsecured and unsubordinated
indebtedness of the Company.
Unless otherwise specified herein or in the applicable Prospectus Supplement,
the Debt Securities will be issued in fully registered book-entry form as global
bonds or global notes and will be registered in the name of The Depository Trust
Company, as depository ("DTC"), or its nominee. Interests in such Debt
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its participants. Debt Securities issued
in book-entry form will not be issuable as certificated securities except as
specified herein or in the applicable Prospectus Supplement. See "DTC
Book-Entry-Only System." Payment of the principal of, and premium, if any, and
interest on the Debt Securities will be made to DTC if and so long as DTC or its
nominee is the registered owner of the Debt Securities. The disbursement of such
payments to beneficial owners of the Debt Securities ("Beneficial Owners") will
be the responsibility of the DTC Participants and the Indirect Participants, all
as defined and more fully described in this Prospectus under the caption "DTC
Book-Entry-Only System."
The applicable Prospectus Supplement will contain information, where applicable
and to the extent not set forth herein, concerning certain United States federal
income tax considerations relating to the Debt Securities covered by such
Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The Debt Securities may be sold directly by the Issuer to one or more
institutional purchasers, through agents designated from time to time, through
dealers or underwriters, or through any combination of the above. If any agents
of the Issuer, the Company or any underwriters are involved in the sale of the
Debt Securities, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in the Prospectus Supplement. See
"Plan of Distribution" for indemnification arrangements which the Issuer and the
Company are prepared to make available to underwriters and agents for the sale
of the Debt Securities.
The date of this Prospectus is November 24, 1997.
<PAGE> 11
Neither the Issuer nor the Company has authorized, or taken any action to
cause, the issue or distribution in the Commonwealth of Australia, any of its
States, territories or possessions or any political subdivision thereof
("Australia"), or to any resident of Australia, of this Prospectus or any other
document inviting applications or offers to subscribe for or buy the Debt
Securities offered hereby or offering such Debt Securities for subscription or
purchase and, accordingly, neither this Prospectus (whether in draft or
definitive form) nor any such other document may be issued or distributed in
Australia or to any resident of Australia.
No prospectus in relation to the Debt Securities has been lodged with or
registered by the Australian Securities Commission. In connection with the
distribution of the Debt Securities, each underwriter or agent in respect of
each series of Debt Securities will represent and agree that (a) no Debt
Securities issued by the Issuer shall be offered or sold, directly or
indirectly, in Australia or any state or territory thereof or to a corporation,
partnership, trust or other entity organized under the laws of, or resident in,
Australia and (b) no documents in relation to an offer of Debt Securities shall
be distributed in Australia or in or from a state or territory thereof.
Apache Finance Pty Ltd is an Australian proprietary company with limited
liability. Some of its directors and executive officers, and the experts named
herein, reside outside the United States (principally in Australia). All or a
substantial portion of the assets of these persons and of Apache Finance Pty Ltd
are located outside the United States. As a result, it may not be possible for
investors to effect service of process within the United States upon such
persons or to enforce against such persons or Apache Finance Pty Ltd judgments
obtained in United States courts predicated upon the civil liability provisions
of the federal securities laws of the United States. Apache Finance Pty Ltd has
been advised by its Australian counsel, Arthur Robinson & Hedderwicks, that
there is doubt as to the enforceability in the Commonwealth of Australia, in
original actions or in actions for enforcement of judgments of United States
courts, of civil liabilities predicated upon the federal securities laws of the
United States. Apache Finance Pty Ltd will appoint CT Corporation System as
authorized agent upon which process may be served in any action arising out of
or based upon the Indenture hereinafter described or the Debt Securities or the
Guarantees which may be instituted in any federal or state court having subject
matter jurisdiction in the Borough of Manhattan, The City of New York, New York.
See "Description of Debt Securities and Guarantees."
Neither any associate (as defined in Division 16F of the Income Tax
Assessment Act 1936 of the Commonwealth of Australia (the "Tax Act") (but on the
basis that subparagraphs 159GZC(1)(a)(ii), (1)(b)(i) and (1)(d)(i) of the Tax
Act do not apply) of the Issuer (an "Associate") nor any resident of Australia
may (directly or indirectly) acquire any Debt Securities or any interest in or
right in respect of the Debt Securities (other than such a person who acquires
Debt Securities or such interest or right in the capacity of a dealer in
relation to the placement of the Debt Securities, interest or right).
Each person who so acquires any Debt Securities or such interest or right
will be deemed to have warranted in favor of the Issuer that the person is
neither an Associate nor a resident of Australia. Any Associate who so acquires
any Debt Securities or any interest in or right in respect of the Debt
Securities may be subject to Australian interest withholding tax and, if so,
will not be entitled to receive any payment of Additional Amounts (as defined
herein) from the Issuer or the Guarantor.
There are currently no Australian exchange controls which restrict the
payment of interest or Additional Amounts (as defined herein), or repayment of
principal to holders of the Debt Securities who are not residents of Australia,
provided they are not nationals of or connected with Iraq or Libya. The
authority of the Reserve Bank of Australia is required for certain payments to
the government of Iraq, the government of or the authorities in Libya, or the
authorities in the former Federal Republic of Yugoslavia (Serbia and Montenegro)
or their respective agencies or nationals.
2
<PAGE> 12
AVAILABLE INFORMATION
Apache is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "SEC"). Reports, proxy statements and other information filed by
Apache can be inspected and copied at the public reference facilities maintained
by the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's
Regional Offices at Seven World Trade Center, 13th Floor, New York, New York
10048 and CitiCorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can be obtained by mail from the Public
Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates, or on the Internet at http://www.sec.gov. In addition,
reports, proxy statements and other information concerning Apache may be
inspected at the offices of The New York Stock Exchange, Inc. ("NYSE"), 20 Broad
Street, New York, New York 10005, and also at the offices of the Chicago Stock
Exchange ("CSE"), One Financial Place, 440 S. LaSalle Street, Chicago, Illinois
60605-1070. The address of the Company's principal executive offices and its
telephone number are 2000 Post Oak Boulevard, Suite 100, Houston, Texas
77056-4400 and (713) 296-6000.
The Company and the Issuer have filed with the SEC a Registration Statement
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement and the exhibits and schedules thereto, certain portions of which have
been omitted pursuant to the rules and regulations of the SEC. The information
so omitted may be obtained from the SEC's principal office in Washington, D.C.
upon payment of the fees prescribed by the SEC. For further information,
reference is hereby made to the Registration Statement. Any statements contained
herein concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the SEC are not necessarily
complete, and in each instance reference is made to the copy of such document so
filed, each such statement being qualified in its entirety by such reference.
Apache, on behalf of the Issuer, and the Issuer will make application to
the SEC for an order of the SEC exempting the Issuer from the reporting
requirements of the Exchange Act. If such order is granted, or the SEC otherwise
grants relief to the Issuer from such reporting requirements, the Issuer will
not be subject to the informational requirements of the Exchange Act. Subject to
SEC relief, the Company also does not intend to include in its consolidated
financial statements any separate financial information with respect to the
Issuer. In addition, in view of the Guarantees, the Issuer does not intend to
furnish to holders of Debt Securities separate financial statements of the
Issuer or other reports.
INFORMATION INCORPORATED BY REFERENCE
The following documents previously filed by the Company with the SEC
pursuant to the Exchange Act (SEC File No. 1,-4300) are incorporated in and made
a part of this Prospectus:
a. Annual Report on Form 10-K for the fiscal year ended December 31, 1996.
b. Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1997.
c. Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
1997.
d. Quarterly Report on Form 10-Q for the fiscal quarter ended September 30,
1997.
e. Current Report on Form 8-K dated June 13, 1997.
f. Current Report on Form 8-K dated August 8, 1997.
g. Current Report on Form 8-K dated October 8, 1997.
All documents which the Company files pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering described herein shall be deemed to be
incorporated by reference herein and to be a part hereof from the
3
<PAGE> 13
date of filing of such reports and documents. Any statement contained in a
document incorporated by reference, or deemed to be incorporated by reference,
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document or in any accompanying Prospectus Supplement modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus. Certain statements contained herein or in the accompanying
Prospectus Supplement, including, without limitation, the statements in "The
Company" which are not historical facts, or incorporated by reference herein
constitute forward-looking statements as such term is defined in Section 27A of
the Securities Act and Section 21E of the Exchange Act. Certain factors as
discussed herein or in the Company's Exchange Act filings with the SEC,
including the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997, could cause actual results to differ materially from those
in the forward-looking statements. Unless otherwise specifically provided herein
or in any accompanying Prospectus Supplement, references to "$" or "dollars" in
this Prospectus or any such Prospectus Supplement shall mean United States
dollars.
The Company undertakes to provide without charge, upon the written or oral
request of any person to whom a copy of this Prospectus has been delivered, a
copy of any or all of the documents referred to above which are incorporated in
this Prospectus by reference, other than exhibits to such documents. Requests
should be directed to Cheri L. Peper, Corporate Secretary, Apache Corporation,
2000 Post Oak Boulevard, Suite 100, Houston, Texas 77056-4400; (713) 296-6000.
---------------------
All defined terms under Rule 4-10(a) of Regulation S-X promulgated under
the Securities Act shall have their statutorily-prescribed meanings when used in
this Prospectus. Quantities of natural gas are expressed in this Prospectus in
terms of thousand cubic feet ("Mcf"), million cubic feet ("MMcf") or billion
cubic feet ("Bcf"). Oil (which includes condensate) is quantified in terms of
barrels ("bbls"), thousands of barrels ("Mbbls") and millions of barrels
("MMbbls"). One barrel of oil is the energy equivalent of six Mcf of natural
gas, expressed as a barrel of oil equivalent. Natural gas is compared to oil in
terms of thousand barrels of oil equivalent ("Mboe") and in million barrels of
oil equivalents ("MMboe"). Oil and natural gas liquids are compared with natural
gas in terms of million cubic feet equivalent ("MMcfe") and billion cubic feet
equivalent ("Bcfe"). Daily oil and gas production is expressed in terms of
barrels of oil per day ("bopd") and thousands of cubic feet of gas per day
("Mcfd"), respectively. The Company's "net" working interest in wells or acreage
is determined by multiplying gross wells or acreage by the Company's working
interest therein. Unless otherwise specified, all references to wells and acres
are gross.
4
<PAGE> 14
THE COMPANY
Apache Corporation, a Delaware corporation formed in 1954, is an
independent energy company that primarily explores for, develops and produces
crude oil and natural gas. In North America, the Company's exploration and
production interests are focused on the Gulf of Mexico, the Anadarko Basin, the
Permian Basin, the Gulf Coast, East Texas and the Western Sedimentary Basin of
Canada. Outside North America, the Company has exploration and production
interests offshore Western Australia and in Egypt, and exploration interests in
China, Poland, offshore the Ivory Coast, and in Indonesia. The common stock, par
value $1.25 per share, of Apache ("Apache Common Stock") has been listed on the
NYSE since 1969, and on the CSE since 1960.
The Company holds interests in many of its North American and international
properties through operating subsidiaries, such as Apache Canada Ltd., MW
Petroleum Corporation, Apache Energy Limited, Apache International, Inc., Apache
Overseas, Inc., and Apache PHN Company, Inc., formerly known as The Phoenix
Resource Companies, Inc. The Company treats all operations as one segment of
business.
THE ISSUER
Apache Finance Pty Ltd is a proprietary company with limited liability
organized in October 1997 under the laws of the Australian Capital Territory,
Australia. Apache Finance Pty Ltd is a wholly-owned indirect subsidiary of the
Company. The purpose of Apache Finance Pty Ltd is to undertake borrowings on
behalf of the Company and certain other subsidiaries of the Company and to
advance the proceeds of such borrowings to the Company or certain of its other
subsidiaries of the Company.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used to refinance
outstanding indebtedness and for other general corporate purposes. To the extent
proceeds are used to refinance outstanding indebtedness, certain terms of the
indebtedness being refinanced will be set forth in the applicable Prospectus
Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratios of earnings to fixed charges were as follows for the
respective periods indicated:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
- ------------- --------------------------------
1997 1996 1996 1995 1994 1993 1992
- ----- ----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
2.91 2.33 2.72 1.15 2.34 2.37 .72
</TABLE>
The Company's ratios of earnings to fixed charges were computed based on:
(A) consolidated income or losses from continuing operations before income taxes
and fixed charges (excluding interest capitalized); and (B) consolidated fixed
charges, which consist of interest on indebtedness (including amounts
capitalized), amortization of debt discount and expense and the estimated
portion of rental expense attributable to interest. Earnings were inadequate to
cover fixed charges by $14.8 million for 1992, due to write downs of the
carrying value of the U.S. and Canadian oil and gas properties of DEK Energy
Company ("DEKALB"), formerly known as DEKALB Energy Company, and losses incurred
on the divestiture of certain of DEKALB's U.S. assets.
5
<PAGE> 15
DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
Unless otherwise specified in the applicable Prospectus Supplement, the
Debt Securities and the Guarantees will be issued under an indenture (the
"Indenture") entered into among the Issuer, the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"). Pursuant to the Guarantees, the Company will
irrevocably and unconditionally guarantee payments of principal, premium, if
any, interest and Additional Amounts, if any, with respect to the Debt
Securities. The Debt Securities to be offered by this Prospectus are limited to
an aggregate initial offering price not to exceed $300,000,000. However, the
Indenture does not limit the amount of Debt Securities which can be issued
thereunder and provides that additional Debt Securities of any series may be
issued thereunder up to the aggregate principal amount which may be authorized
from time to time by the Issuer and the Company. Unless otherwise indicated
herein or in the applicable Prospectus Supplement, the Debt Securities will be
issued in denominations of $100,000 and integral multiples of $1,000 in excess
thereof.
The maturity date, interest payment dates, and rate of interest of the Debt
Securities will be as set forth in the Prospectus Supplement applicable thereto.
Subject to certain exceptions therein set forth, the Indenture provides for the
payment of interest on any interest payment date only to persons in whose names
the Debt Securities are registered on the regular record date, which is the last
day of the respective calendar months preceding the month in which an interest
payment is due (whether or not a business day).
A copy of the Indenture is an exhibit to the Registration Statement of
which this Prospectus is a part. The information herein includes a summary of
certain provisions of the Indenture and does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all provisions of
the Indenture including the definition therein of certain terms. The following
summaries set forth certain general terms and provisions of the Debt Securities
to which any Prospectus Supplement may relate. The particular terms of the Debt
Securities offered by any Prospectus Supplement and the extent, if any, to which
such general provisions may apply to the Debt Securities so offered will, to the
extent not described herein, be described in the Prospectus Supplement relating
to such Debt Securities.
PROVISIONS APPLICABLE TO ALL DEBT SECURITIES
General
Reference is made to the Prospectus Supplement that accompanies this
Prospectus for the following terms, to the extent permitted by the Indenture,
and other information with respect to the Debt Securities being offered thereby,
to the extent not described herein: (i) the designation, aggregate principal
amount and authorized denominations of such Debt Securities; (ii) the percentage
of the principal amount at which such Debt Securities will be issued; (iii) the
date (or the manner of determining or extending the date or dates) on which the
principal of such Debt Securities will be payable; (iv) whether such Debt
Securities will be issued in fully registered form or in bearer form or any
combination thereof; (v) whether such Debt Securities will be issued in the form
of one or more global securities and whether such global securities are to be
issuable in a temporary global form or permanent global form; (vi) if other than
U.S. dollars, the currency or currencies or currency unit or units in which Debt
Securities may be denominated and purchased and the currency or currencies or
currency units in which principal, premium (if any) and any interest may be
payable; (vii) if the currency for which Debt Securities may be purchased or in
which principal, premium (if any) and any interest may be payable is at the
election of the Issuer or the purchaser, the manner in which such an election
may be made and the terms of such election; (viii) the rate or rates per annum
at which such Debt Securities will bear interest, if any, or the method or
methods of determination of such rate or rates and the basis upon which interest
will be calculated if other than that of a 360-day year consisting of twelve
30-day months; (ix) the date or dates from which such interest, if any, on such
Debt Securities will accrue or the method or methods, if any, by which such date
or dates are to be determined, the date or dates on which such interest, if any,
will be payable, the date on which payment of such interest, if any, will
commence and the Regular Record Dates for such Interest Payment Dates, if any;
(x) the date or dates, if any, on or after which, or the
6
<PAGE> 16
period or periods, if any, within which, and the price or prices at which the
Debt Securities may, pursuant to any optional redemption provisions, be redeemed
at the option of the Issuer or of the holder thereof and the other terms and
provisions of such optional redemption; (xi) information with respect to book-
entry procedures relating to global Debt Securities; (xii) whether and under
what circumstances the Issuer will pay Additional Amounts as contemplated by
Section 1004 of the Indenture (the term "interest," as used in this Prospectus,
shall include such Additional Amounts) on such Debt Securities to any holder who
is a United States Alien (as defined in the Indenture) (including any
modification to the definition of such terms contained in the Indenture as
originally executed) in respect of any tax, assessment or governmental charge
and, if so, whether the Issuer will have the option to redeem such Debt
Securities rather than pay such Additional Amounts (and the terms of any such
option); (xiii) any deletions from, modifications of or additions to the Events
of Default or covenants of the Issuer with respect to any of such Debt
Securities; (xiv) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be applicable to the
Debt Securities of such series, or any covenants in addition to those specified
in Section 402(3) relating to the Debt Securities of such series shall be
subject to covenant defeasance, and any deletions from, or modifications or
additions to, the provisions of Article Four of the Indenture relating to
satisfaction and discharge in respect of the Debt Securities of such series;
(xv) any index or other method used to determine the amount of payments of
principal, premium (if any) and interest, if any, on such Debt Securities; (xvi)
if a trustee other than The Chase Manhattan Bank is named for such Debt
Securities, the name of such trustee; and (xvii) any other specific terms of the
Debt Securities. All Debt Securities of any one series need not be issued at the
same time and all the Debt Securities of any one series need not bear interest
at the same rate or mature on the same date.
If any of the Debt Securities are sold for foreign currencies or foreign
currency units or if the principal of, or premium, if any, or interest, if any,
on any series of Debt Securities is payable in foreign currencies or foreign
currency units, the restrictions, elections, tax consequences, specific terms
and other information with respect to such Debt Securities and such foreign
currencies or foreign currency units will be set forth in the applicable
Prospectus Supplement.
Other than as described below under "Limitation on Liens" and "Issuer's
Obligation to Purchase Debt Securities on Change in Control," the Indenture does
not contain any provision that would limit the ability of the Company or the
Issuer to incur indebtedness or that would afford holders of Debt Securities
protection in the event of a decline in the credit quality of the Company or the
Issuer or a takeover, recapitalization or highly leveraged or similar
transaction involving the Company or the Issuer. Reference is made to the
Prospectus Supplement relating to the particular series of Debt Securities
offered thereby, to the extent not otherwise described herein, for any
information with respect to any deletions from, modifications of or additions to
the Events of Default described below or covenants of the Company and the Issuer
contained in the Indenture, including any addition of a covenant or other
provision providing event risk or similar protection.
Guarantees
The Company will irrevocably and unconditionally guarantee to each holder
of a Debt Security issued by the Issuer and authenticated and delivered by the
Trustee the due and punctual payment of the principal of, and any premium and
interest on, such Debt Security, when and as the same shall become due and
payable, whether at maturity, upon acceleration, by call for redemption,
repayment or otherwise in accordance with the terms of the Debt Securities and
of the Indenture. The Company has (a) agreed that its obligations under the
Guarantees in the event of an Event of Default will be as if it were principal
obligor and not merely surety, and will be enforceable irrespective of any
invalidity, irregularity or unenforceability of any series of the Debt
Securities or the Indenture or any supplement thereto and (b) waived its right
to require the Trustee or the holders to pursue or exhaust its legal or
equitable remedies against the Issuer prior to exercising its rights under the
Guarantees.
7
<PAGE> 17
Ranking
The Guarantees will be unsecured obligations of the Company, and will rank
on a parity with all other unsecured and unsubordinated indebtedness of the
Company. The Debt Securities issued by the Issuer will be unsecured obligations
of the Issuer, and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Issuer.
Dividend and other distributions to the Company from its various
subsidiaries may be subject to certain statutory, contractual and other
restrictions (including, without limitation, exchange controls that may be
applicable to foreign subsidiaries). The rights of any creditors of the Company
to participate in the assets of any subsidiary upon such subsidiary's
liquidation or recapitalization will be subject to the prior claims of the
subsidiary's creditors, except to the extent that the Company may itself be a
creditor with recognized claims against such subsidiary. The claims of holders
under the Debt Securities or the Guarantees will be effectively subordinated to
the claims of creditors of the Company's subsidiaries. The Indenture does not
restrict the amount of indebtedness that may be incurred by the Issuer, the
Company or its other subsidiaries.
Interest Rates
The Debt Securities will earn interest at the fixed or floating rate for
the period of time specified in the applicable Prospectus Supplement.
If the Debt Securities earn interest at a floating rate, the applicable
Prospectus Supplement shall state the Interest Rate Basis or Bases (including
(a) the applicable Spread, if any, and/or (b) multiplied by the applicable
Spread Multiplier, if any), the Interest Payment Period and Dates, the Index
Maturity and the Maximum Interest Rate and/or Minimum Interest Rate, if any, as
such terms are defined below. If one or more of the applicable Interest Rate
Bases is LIBOR, the Prospectus Supplement must also specify the Index Currency
and Designated LIBOR Page, as such terms are defined below. Unless otherwise
specified in the applicable Prospectus Supplement, the Debt Securities shall
bear interest on the basis of a 360-day year consisting of twelve 30-day months.
The "Spread" is the number of basis points to be added to or subtracted
from the related Interest Rate Basis or Bases applicable to each respective Debt
Security. The "Spread Multiplier" is the percentage of the related Interest Rate
Basis or Bases by which such Interest Rate Basis or Bases will be multiplied to
determine the applicable interest rate. The "Index Maturity" is the period to
maturity of the instrument or obligation with respect to which the related
Interest Rate Basis or Bases will be calculated.
Unless otherwise specified in the Prospectus Supplement, the Interest Rate
Basis may, as described below, include (i) the Commercial Paper Rate, (ii)
LIBOR, (iii) the Treasury Rate, or (iv) such other Interest Rate Basis or
interest rate formula as may be specified in the applicable Prospectus
Supplement.
The applicable Prospectus Supplement will specify whether the floating rate
of interest will be reset daily, weekly, monthly, quarterly, semiannually or
annually or on such other specified basis (each, an "Interest Reset Period") and
the dates on which such rate of interest will be reset (each, an "Interest Reset
Date"). Unless otherwise specified in the applicable Prospectus Supplement, the
Interest Reset Dates will be, in the case of a floating interest rate which
resets: (i) daily, each Business Day; (ii) weekly, the Wednesday of each week
(unless the Treasury Rate is an applicable Interest Rate Basis, in which case
the Tuesday of each week except as described below); (iii) monthly, the third
Wednesday of each month; (iv) quarterly, the third Wednesday of March, June,
September and December of each year, (v) semiannually, the third Wednesday of
the two months specified in the applicable Prospectus Supplement; and (vi)
annually, the third Wednesday of the month specified in the applicable
Prospectus Supplement. If any Interest Reset Date would otherwise be a day that
is not a Business Day, such Interest Reset Date will be postponed to the next
succeeding Business Day, unless LIBOR is an applicable Interest Rate Basis and
such Business Day falls in the next succeeding calendar month, in which case
such Interest Reset Date will be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an
8
<PAGE> 18
Interest Reset Date, then such Interest Reset Date will be postponed to the next
succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing on
the related Interest Reset Date will be the rate determined by the Calculation
Agent (as hereinafter defined), after consultation with the Issuer, as of the
applicable Interest Determination Date on or prior to the Calculation Date (as
hereinafter defined). The "Interest Determination Date" (i) with respect to the
Commercial Paper Rate will be the second Business Day immediately preceding the
applicable Interest Reset Date; (ii) with respect to LIBOR will be the second
London Business Day immediately preceding the applicable Interest Reset Date,
unless the Index Currency is British pounds sterling, in which case the
"Interest Determination Date" will be the applicable Interest Reset Date; and
(iii) with respect to the Treasury Rate will be the day in the week in which the
applicable Interest Reset Date falls on which day Treasury Bills (as hereinafter
defined) are auctioned during or for the week in which the applicable Interest
Reset Date falls (Treasury Bills being normally sold at an auction held on
Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that such auction may
be held on the preceding Friday); provided, however, that if an auction is held
on the Friday of the week preceding the applicable Interest Reset Date, the
Interest Determination Date will be such preceding Friday, provided, further,
that if the Interest Determination Date would otherwise fall on an Interest
Reset Date, then such Interest Reset Date will be postponed to the next
succeeding Business Day. The "Interest Determination Date" pertaining to a
floating interest rate which is determined by reference to two or more Interest
Rate Bases will be the most recent Business Day which is at least two Business
Days prior to the applicable Interest Reset Date on which each Interest Rate
Basis is determinable. Each Interest Rate Basis will be determined as of such
date, and the applicable interest rate will take effect on the applicable
Interest Reset Date.
Either or both of the following may also apply to the floating interest
rate on Debt Securities: (i) a Maximum Interest Rate, or ceiling, that may
accrue during any Interest Reset Period, and (ii) a Minimum Interest Rate, or
floor, that may accrue during any Interest Reset Period. In addition to any
Maximum Interest Rate that may apply, the interest rate on any Debt Securities
will in no event be higher than the maximum rate permitted by New York law, as
the same may be modified by United States laws of general application.
Except as provided below or in the applicable Prospectus Supplement,
interest will be payable, in the case of floating interest rates which reset:
(i) daily, weekly or monthly, on the third Wednesday of each month or on the
third Wednesday of March, June, September and December of each year, as
specified in the applicable Prospectus Supplement; (ii) quarterly, on the third
Wednesday of March, June, September and December of each year; (iii)
semiannually, on the third Wednesday of the two months of each year specified in
the applicable Prospectus Supplement; and (iv) annually, on the third Wednesday
of the month of each year specified in the applicable Prospectus Supplement. If
any Interest Payment Date other than the Maturity Date for the payment of
interest at a floating rate would otherwise be a day that is not a Business Day,
such Interest Payment Date will be postponed to the next succeeding Business
Day, except that if LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Payment Date will
be the immediately preceding Business Day.
All percentages resulting from any calculation of floating interest rates
will be rounded to the nearest one hundred-thousandth of a percentage point,
with five one-millionths of a percentage point rounded upwards (e.g., 9.876545
percent (or .09876545) would be rounded to 9.87655 percent (or .0987655)), and
all amounts used in or resulting from such calculation will be rounded, in the
case of United States dollars, to the nearest cent or, in the case of a foreign
currency or composite currency, to the nearest unit (with one-half cent or unit
being rounded upwards).
Accrued floating rate interest will be calculated by multiplying the
principal amount of the Debt Securities to which it relates by an accrued
interest factor. Such accrued interest factor will be computed by adding the
interest factor calculated for each day in the applicable Interest Reset Period.
Unless
9
<PAGE> 19
otherwise specified in the applicable Prospectus Supplement, the interest factor
for each such day will be computed by dividing the interest rate applicable to
such day by 360, if an applicable Interest Rate Basis is the Commercial Paper
Rate or LIBOR, or by the actual number of days in the year if an applicable
Interest Rate Basis is the Treasury Rate. Unless otherwise specified in the
applicable Prospectus Supplement, if the floating interest rate is calculated
with reference to two or more Interest Rate Bases, the interest factor will be
calculated in each period in the same manner as if only one of the applicable
Interest Rate Bases applied as specified in the applicable Prospectus
Supplement.
Unless otherwise specified in the applicable Prospectus Supplement, The
Chase Manhattan Bank will be the "Calculation Agent." Upon request of the
Beneficial Owner of any Debt Securities, the Calculation Agent will disclose the
interest rate then in effect and, if determined, the interest rate that will
become effective as a result of a determination made for the next succeeding
Interest Reset Date with respect to such Debt Securities. Unless otherwise
specified in the applicable Prospectus Supplement, the "Calculation Date," if
applicable, pertaining to any Interest Determination Date will be the earlier of
(i) the tenth calendar day after such Interest Determination Date or, if such
day is not a Business Day, the next succeeding Business Day or (ii) the Business
Day immediately preceding the applicable Interest Payment Date or the Maturity
Date, as the case may be.
Unless otherwise specified in the applicable Prospectus Supplement, the
Calculation Agent shall determine each Interest Rate Basis in accordance with
the following provisions.
Commercial Paper Rate. Unless otherwise specified in the applicable
Prospectus Supplement, "Commercial Paper Rate" means, with respect to any
Interest Determination Date for which the interest rate is determined with
reference to the Commercial Paper Rate (a "Commercial Paper Rate Interest
Determination Date"), the Money Market Yield (as hereinafter defined) on such
date of the rate for commercial paper having the Index Maturity specified in the
applicable Prospectus Supplement as published in H.15(519) under the heading
"Commercial Paper." In the event that such rate is not published by 3:00 p.m.,
New York City time, on the related Calculation Date, then the Commercial Paper
Rate on such Commercial Paper Rate Interest Determination Date will be the Money
Market Yield of the rate for commercial paper having the Index Maturity
specified in the applicable Prospectus Supplement as published in Composite
Quotations under the heading "Commercial Paper" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 p.m., New York City time, on the
related Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be calculated by the Calculation
Agent and will be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 a.m., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
New York, New York selected by the Calculation Agent, after consultation with
the Issuer, for commercial paper having the Index Maturity specified in the
applicable Prospectus Supplement placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized statistical
rating organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
<TABLE>
<S> <C> <C>
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
</TABLE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
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<PAGE> 20
LIBOR. Unless otherwise specified in the applicable Prospectus Supplement,
"LIBOR" means the rate determined in accordance with the following provisions:
(i) With respect to any Interest Determination Date for which the
interest rate is determined with reference to LIBOR (a "LIBOR Interest
Determination Date"), LIBOR will be either: (a) if "LIBOR Reuters" is
specified in the applicable Prospectus Supplement, the arithmetic mean of
the offered rates (unless the Designated LIBOR Page by its terms provides
only for a single rate, in which case such single rate shall be used) for
deposits in the Index Currency having the Index Maturity specified in such
Prospectus Supplement, commencing on the applicable Interest Reset Date,
that appear (or, if only a single rate is required as aforesaid, appears)
on the Designated LIBOR Page as of 11:00 a.m., London time, on such LIBOR
Interest Determination Date, or (b) if "LIBOR Telerate" is specified in the
applicable Prospectus Supplement or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified in the applicable Prospectus Supplement as the
method for calculating LIBOR, the rate for deposits in the Index Currency
having the Index Maturity specified in such Prospectus Supplement,
commencing on such Interest Reset Date, that appears on the Designated
LIBOR Page as of 11:00 a.m., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear, or if no
such rate appears, as applicable, LIBOR on such LIBOR Interest
Determination Date will be determined in accordance with the provisions
described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent will request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, after consultation with the Issuer, to provide the
Calculation Agent with its offered quotation for deposits in the Index
Currency for the period of the Index Maturity specified in the applicable
Prospectus Supplement, commencing on the applicable Interest Reset Date, to
prime banks in the London interbank market at approximately 11:00 a.m.,
London time, on such LIBOR Interest Determination Date and in a principal
amount that is representative for a single transaction in such Index
Currency in such market at such time. If at least two such quotations are
so provided, then LIBOR on such LIBOR Interest Determination Date will be
the arithmetic mean of such quotations. If fewer than two such quotations
are so provided, then LIBOR on such LIBOR Interest Determination Date will
be the arithmetic mean of the rates quoted at approximately 11:00 a.m., in
the applicable Principal Financial Center, on such LIBOR Interest
Determination Date by three major banks in such Principal Financial Center
selected by the Calculation Agent, after consultation with the Issuer, for
loans in the Index Currency to leading European banks, having the Index
Maturity specified in the applicable Prospectus Supplement and in a
principal amount that is representative for a single transaction in such
Index Currency in such market at such time; provided, however, that if the
banks so selected by the Calculation Agent are not quoting as mentioned in
this sentence, LIBOR determined as of such LIBOR Interest Determination
Date will be LIBOR in effect on such LIBOR Interest Determination Date.
(iii) "Index Currency" means the currency or composite currency
specified in the applicable Prospectus Supplement as to which LIBOR shall
be calculated. If no such currency or composite currency is specified in
the applicable Prospectus Supplement, the Index Currency shall be United
States dollars.
"Principal Financial Center" means the capital city of the country issuing
the Index Currency, except that with respect to United States dollars,
Australian dollars, Deutsche marks, Dutch guilders, Italian lire, Swiss francs
and ECUs, the Principal Financial Center shall be New York City, Sydney,
Frankfurt, Amsterdam, Milan, Zurich and Luxembourg, respectively.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified in the
applicable Prospectus Supplement, the display on the Reuters Monitor Money Rates
Service (or any successor service) for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency, or
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<PAGE> 21
(b) if "LIBOR Telerate" is specified in the applicable Prospectus Supplement or
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified in the applicable
Prospectus Supplement as the method for calculating LIBOR, the display on the
Dow Jones Markets Limited (or any successor service) on the page specified in
the applicable Prospectus Supplement (or any other page as may replace such page
on such service) for the purpose of displaying the London interbank rates of
major banks for the applicable Index Currency.
Treasury Rate. Unless otherwise specified in the applicable Prospectus
Supplement, "Treasury Rate" means, with respect to any Interest Determination
Date for which the interest rate is determined by reference to the Treasury Rate
(a "Treasury Rate Interest Determination Date"), the rate from the auction held
on such Treasury Rate Interest Determination Date (the "Auction") of direct
obligations of the United States ("Treasury Bills") having the Index Maturity
specified in the applicable Prospectus Supplement, as such rate is published in
H.15(519) under the heading "Treasury Bills -- auction average (investment)" or,
if not published by 3:00 p.m., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity specified in the applicable Prospectus Supplement are not
reported as provided by 3:00 p.m., New York City time, on the related
Calculation Date, or if no such Auction is held, then the Treasury Rate will be
calculated by the Calculation Agent, after consultation with the Issuer, and
will be a yield to maturity (expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
p.m., New York City time, on such Treasury Rate Interest Determination Date, of
three leading primary United States government securities dealers selected by
the Calculation Agent, after consultation with the Issuer, for the issue of
Treasury Bills with a remaining maturity closest to the Index Maturity specified
in the applicable Prospectus Supplement; provided, however, that if the dealers
so selected by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate determined as of such Treasury Rate Interest
Determination Date will be the Treasury Rate in effect on such Treasury Rate
Interest Determination Date.
Discount, Series, Maturities, Registration, and Payment
The Debt Securities may be sold at a substantial discount below their
stated principal amount, bearing no interest or interest at a rate that at the
time of issuance is below market rates. See "Certain Tax
Considerations -- United States Federal Income Tax Considerations" and "Certain
Tax Considerations -- Australian Tax Considerations" herein. United States
federal income tax consequences and special considerations applicable to any
such series may also be described in the Prospectus Supplement relating thereto.
The Debt Securities may be issued in one or more series with the same or
various maturities. (Section 301) Debt Securities may be issued solely in fully
registered form without coupons ("Registered Securities"), solely in bearer form
with or without coupons ("Bearer Securities"), or as both Registered Securities
and Bearer Securities. (Section 301) Registered Securities may be exchangeable,
upon surrender, for other Debt Securities of the same series, registered in the
same name, for a like aggregate principal amount in authorized denominations and
will be transferable at any time or from time to time at the aforementioned
office. No service charge will be made to the holder for any such exchange or
transfer, except for any tax or governmental charge incidental thereto. If Debt
Securities of any series are issued as Bearer Securities, the applicable
Prospectus Supplement will contain any restrictions applicable to the offer,
sale or delivery of Bearer Securities and the terms upon which Bearer Securities
of the series may be exchanged for Registered Securities of the series and, if
permitted by applicable laws and regulations, the terms upon which Registered
Securities of the series may be exchanged for Bearer Securities of the series,
whether such Debt Securities are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in any such
permanent global security
12
<PAGE> 22
may exchange such interests for Debt Securities of such series and the
circumstances under which any such exchanges may occur.
Unless otherwise specified in the applicable Prospectus Supplement,
principal, premium, if any, and interest, if any, with respect to the Debt
Securities offered thereby will be payable at the office or agency of the Issuer
and the Company maintained for such purposes in the city where the principal
corporate trust office of the Trustee is located, and will initially be the
principal corporate trust office of the Trustee, provided that payment of
interest, if any, may be made (subject to collection) by check mailed to the
persons in whose names the Debt Securities are registered at the close of
business on the day specified in the applicable Prospectus Supplement.
Form, Exchange, Registration and Transfer
Debt Securities will be exchangeable for other Debt Securities of the same
series and of like tenor, of any authorized denominations and of a like
aggregate principal amount and Stated Maturity (as defined in the Indenture).
Registered Securities may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed) at the office of the Trustee or
at the corporate trust office of any transfer agent designated by the Issuer or
the Company for such purpose, without service charge and upon payment of any
taxes and other governmental charges as described in the Indenture. Such
transfer or exchange will be effected upon the books of the Trustee or such
transfer agent contingent upon such Trustee or transfer agent, as the case may
be, being satisfied with the documents of title and identity of the person
making the request. (Section 305)
In the event of any redemption of Debt Securities, neither the Issuer nor
the Company shall be required to: (i) issue, register the transfer of or
exchange such Debt Securities during a period beginning at the opening of
business 15 days before any selection of such Debt Securities to be redeemed and
ending at the close of business on the day of mailing of the relevant notice of
redemption; or (ii) register the transfer of or exchange any such Debt Security,
or portion thereof, called for redemption, except the unredeemed portion of any
such Debt Security being redeemed in part. (Section 305)
Limitation on Liens
Nothing in the Indenture, the Debt Securities or the Guarantees will in any
way limit the amount of indebtedness or securities (other than the Debt
Securities) which may be incurred or issued by the Company or any of its
Subsidiaries (as defined in the Indenture). The Indenture provides that neither
the Issuer nor the Company nor any other Subsidiary will issue, assume or
guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed secured by any mortgage, lien, pledge, security
interest or other encumbrance (defined in the Indenture as "Liens") upon any of
its property, subject to certain exceptions set forth in the Indenture, without
making effective provisions whereby any and all Debt Securities then outstanding
shall be secured by a Lien equally and ratably with any and all other
obligations thereby secured. Such restrictions will not, however, apply to (a)
Liens existing on the date of the Indenture or provided for under the terms of
agreements existing on the date thereof; (b) Liens on property to secure (i) all
or part of the cost of exploring, producing, gathering, processing, marketing,
drilling or developing such property, or to secure indebtedness incurred to
provide funds therefor; or (ii) indebtedness incurred to finance all or part of
the cost of acquiring, constructing, altering, improving or repairing any such
property or assets, or securing indebtedness incurred to provide funds therefor;
(c) Liens which secure only indebtedness owing by a Subsidiary to the Issuer or
the Company, or to one or more Subsidiaries, or the Company and one or more
Subsidiaries; (d) Liens on the property of any corporation or other entity
existing at the time such corporation or entity becomes a Subsidiary; (e) Liens
on any property to secure indebtedness incurred in connection with the
construction, installation or financing of pollution control or abatement
facilities or other forms of industrial revenue bond financing or indebtedness
issued or guaranteed by the United States, any state or any department, agency
or instrumentality of either or indebtedness issued to or guaranteed for the
benefit of a foreign government, any state or any department, agency or
instrumentality of either or an international finance agency or any division or
department thereof, including the World Bank, the International Finance
13
<PAGE> 23
Corporation and the Multilateral Investment Guarantee Agency; (f) any extension,
renewal or replacement (or successive extensions, renewals or replacements) of
any Lien referred to in the foregoing clauses (a) through (e) existing on the
date of the Indenture; (g) certain Liens incurred in the ordinary course of
business of the Company or (h) Liens which secure Limited Recourse Indebtedness
(as defined in the Indenture). The following types of transactions, among
others, shall not be deemed to create indebtedness secured by Liens: (i) the
sale or other transfer of crude oil, natural gas or other petroleum hydrocarbons
in place for a period of time until, or in an amount such that, the transferee
will realize therefrom a specified amount (however determined) of money or such
crude oil, natural gas or other petroleum hydrocarbons, or the sale or other
transfer of any other interest in property of the character commonly referred to
as a production payment, overriding royalty, forward sale or similar interest;
and (ii) Liens required by any contract or statute in order to permit the
Issuer, the Company or another Subsidiary to perform any contract or subcontract
made by it with or at the request of the United States government or any foreign
government or international finance agency, any state or any department thereof,
or any agency or instrumentality of either, or to secure partial, progress,
advance or other payments to the Company or any Subsidiary by any such entity
pursuant to the provisions of any contract or statute. (Section 1005)
Limitation on Sale/Leaseback Transactions
The Indenture provides that neither the Company nor any Subsidiary will
enter into any arrangement with any person (other than the Company or a
Subsidiary) providing for the leasing to the Company or a Subsidiary for a
period of more than three years of any property which has been, or is to be,
sold or transferred by the Company or such Subsidiary to such person or to any
person (other than the Company or a Subsidiary) to which funds have been or are
to be advanced by such person on the security of the leased property unless
either (a) the Issuer, the Company or such Subsidiary would be entitled,
pursuant to the provisions described under "Limitation on Liens" above, to incur
indebtedness in a principal amount equal to or exceeding the value of such
sale/leaseback transaction, secured by a Lien on the property to be leased; (b)
since the date of the Indenture and within a period commencing six months prior
to the consummation of such arrangement and ending six months after the
consummation thereof, the Issuer, the Company or such Subsidiary has expended or
will expend for any property (including amounts expended for the acquisition,
exploration, drilling or development thereof, and for additions, alterations,
improvements and repairs thereto) an amount equal to all or a portion of the net
proceeds of such arrangement and the Issuer, the Company or such Subsidiary, as
the case may be, elects to designate such amount as a credit against such
arrangement (with any such amount not being so designated to be applied as set
forth in (c) below); or (c) the Issuer, the Company or any Subsidiary, during or
immediately after the expiration of the 12 months after the effective date of
such transaction, applies to the voluntary redemption, defeasance or retirement
of the Debt Securities and its other Senior Indebtedness (as defined in the
Indenture) an amount equal to the greater of the net proceeds of the sale or
transfer of the property leased in such transaction or the fair value, in the
opinion of the board of directors of the Issuer, the Company or the Subsidiary
of such property at the time of entering into such transaction (in either case
adjusted to reflect the remaining term of the lease and any amount utilized by
the Company as set forth in (b) above), less an amount equal to the principal
amount of Senior Indebtedness voluntarily retired by the Company within such
12-month period. (Section 1006)
Exempted Indebtedness
Notwithstanding the limitations on Liens and sale/leaseback transactions
outlined above, the Issuer, the Company or any other Subsidiary may create,
assume or suffer to exist Liens or enter into sale/leaseback transactions not
otherwise permitted as described above, provided that at the time of such event,
and after giving effect thereto, the sum of outstanding indebtedness for
borrowed money incurred after the date of the Indenture and secured by such
Liens plus the attributable debt in respect of such sale/leaseback transactions
entered into after the date of the Indenture does not exceed 10 percent of
Consolidated Net Worth (as defined in the Indenture) properly appearing on a
consolidated balance sheet of the Company. (Sections 1005 and 1006)
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<PAGE> 24
Assignment
The Indenture provides that for so long as any of the Debt Securities of
the Issuer are outstanding, the Issuer may assign its obligations under any
series of Debt Securities to any other Subsidiary (the "Subsidiary Assignee")
and such Subsidiary Assignee shall be treated as the Successor to the Issuer
with respect to such series of Debt Securities, provided that the conditions set
forth under "Consolidation, Merger and Sale of Assets" below that would apply to
the merger of the Issuer into such Subsidiary Assignee are satisfied. (Section
802)
Events of Default
Unless otherwise specified in the applicable Prospectus Supplement, any one
of the following events will constitute an Event of Default under the Indenture
with respect to the Debt Securities of any series: (a) failure to pay any
interest on any Debt Security of such series when due, continued for 30 days;
(b) failure to pay principal of (or premium, if any) on the Debt Securities of
such series when due and payable, either at maturity, upon redemption or, if
applicable, at 12:00 noon on the Business Day following the Change in Control
Purchase Date; (c) failure to perform, or breach of, any other covenant or
warranty of the Issuer or the Company in the Indenture or the Debt Securities
(other than a covenant or warranty included in the Indenture solely for the
benefit of a series of securities other than the Debt Securities), continued for
60 days after written notice as provided in the Indenture; (d) the acceleration
of any Indebtedness (as defined in the Indenture) of the Issuer, the Company or
any other Subsidiary in excess of an aggregate of $25,000,000 in principal
amount under any event of default as defined in any mortgage, indenture or
instrument and such acceleration has not been rescinded or annulled within 30
days after written notice as provided in the Indenture specifying such Event of
Default and requiring the Issuer and the Company to cause such acceleration to
be rescinded or annulled; (e) failure to pay, bond or otherwise discharge within
60 days of entry, a judgment, court order or uninsured monetary damage award
against the Issuer, the Company or any other Subsidiary exceeding an aggregate
of $25,000,000 in principal amount which is not stayed on appeal or otherwise
being appropriately contested in good faith; (f) certain events of bankruptcy,
insolvency or reorganization involving the Issuer, the Company or any other
Subsidiary; and (g) any other Event of Default provided with respect to the Debt
Securities of that series. (Section 501)
If an Event of Default with respect to the Debt Securities of any series
(other than an Event of Default described in (e) or (f) of the preceding
paragraph) occurs and is continuing, either the Trustee or the holders of at
least 25 percent in aggregate principal amount of the outstanding Debt
Securities of such series by notice as provided in the Indenture may declare the
principal amount of such Debt Securities to be due and payable immediately. At
any time after a declaration of acceleration has been made, but before a
judgment or decree for payment of money has been obtained by the Trustee, and
subject to applicable law and certain other provisions of the Indenture, the
holders of a majority in aggregate principal amount of the Debt Securities of
such series may, under certain circumstances, rescind and annul such
acceleration. An Event of Default described in (e) or (f) of the preceding
paragraph shall cause the principal amount and accrued interest (or such lesser
amount as provided for in the Debt Securities of such series) to become
immediately due and payable without any declaration or other act by the Trustee
or any holder. (Section 502)
The Indenture provides that, within 90 days after the occurrence of any
Event of Default thereunder with respect to the Debt Securities of any series,
the Trustee shall transmit, in the manner set forth in the Indenture, notice of
such Event of Default to the holders of the Debt Securities of such series
unless such Event of Default has been cured or waived; provided, however, that
except in the case of a default in the payment of principal of, or premium, if
any, or interest, if any, or Additional Amounts, if any, on any Debt Security of
such series, the Trustee may withhold such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers (as defined in the Indenture) of the Trustee have in good
faith determined that the withholding of such notice is in the interest of the
holders of Debt Securities of such series. (Section 602)
15
<PAGE> 25
If an Event of Default occurs and is continuing with respect to the Debt
Securities of any series, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the holders of Debt Securities of such
series by all appropriate judicial proceedings. (Section 504)
The Indenture provides that, subject to the duty of the Trustee during any
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the holders of Debt Securities, unless such
holders shall have offered to the Trustee reasonable indemnity. (Section 601)
Subject to such provisions for the indemnification of the Trustee, and
subject to applicable law and certain other provisions of the Indenture, the
holders of a majority in aggregate principal amount of the outstanding Debt
Securities of a series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of such series. (Section 512)
Assumption by the Company
The Company may, at its option, assume the obligations of the Issuer as
obligor under any series of Debt Securities, provided that:
(a) the Company shall expressly assume such obligations in an
assumption agreement or supplemental indenture duly executed and delivered
to the Trustee in form reasonably satisfactory to Trustee;
(b) immediately after giving effect to such assumption, no Event of
Default and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(c) the Company shall expressly agree in an assumption agreement or
supplemental indenture to immediately indemnify (pursuant to the procedure
described below under "Indemnification Procedure") the holder of each Debt
Security against (i) any tax, assessment or governmental charge imposed on
such holder or required to be withheld or deducted from any payment to such
holder (including any governmental charge or withholding tax attributable
to the Company's indemnifying such holder) as a consequence of such
assumption, and (ii) any costs or expenses of such assumption (except that
if the Company delivers an opinion of an independent counsel or a tax
consultant of recognized standing that the holders will not recognize
income, gain or loss for United States federal income tax purposes as a
result of such assumption, a holder will have such rights to
indemnification only if and when gain for United States federal income tax
purposes is actually imposed on such holder).
Upon any such assumption, the Company shall succeed to, and be substituted
for, and may exercise any right and power of, the Issuer under such series of
Debt Securities and the Indenture with the same effect as if the Company had
been the Issuer thereof, and the Issuer shall be released from its liability as
obligor under such series of Debt Securities. (Section 804)
See "Certain Tax Considerations -- United States Federal Income Tax
Considerations -- Taxation of Dispositions" for a discussion of certain
potential United States federal income tax consequences of an assumption of the
Debt Securities pursuant to this provision.
Indemnification Procedure
If a transaction described under "Consolidation, Merger and Sale of Assets"
or "Assumption by the Company" (an "Indemnifiable Transaction") should
constitute a taxable event for United States federal income tax purposes, the
Company or any Person (as defined in the Indenture), as the case may be, must
indemnify a holder of a Debt Security against any tax, assessment, or
governmental charge imposed on such holder or required to be withheld or
deducted from any payment to such holder (including any governmental charge or
withholding attributable to an indemnification payment made by
16
<PAGE> 26
or on behalf of the Company or any Person) and any other tax costs or tax
expenses attributable to such Indemnifiable Transaction. In satisfying such
indemnification obligation, the Company or any such Person, as the case may be,
shall comply with the indemnification procedures below. (Section 805)
Unless the Company or any such Person, as the case may be, delivers to the
Trustee by the date of an Indemnifiable Transaction (as defined in the
Indenture) an opinion of an independent counsel or a tax consultant of
recognized standing to the effect that such Indemnifiable Transaction will not
be a taxable event for United States federal income tax purposes, the Company or
any such Person, as the case may be, shall send to each holder of a Debt
Security on or prior to the date of such Indemnifiable Transaction (a)
notification explaining the United States federal income tax consequences to
such holder of such Indemnifiable Transaction and (b) an indemnification claim
requesting (i) information concerning such holder's tax basis and holding period
in a Debt Security; (ii) a statement that such holder is not an entity that is
exempt from United States federal income tax as described in Section 501 of the
Code; and (iii) setting forth the address to which such holder must remit such
form. If the Company or any such Person delivers such an Opinion, such holder
will have the indemnification rights described herein only if and when gain for
United States federal income tax purposes is actually imposed on such holder.
When the Company or any Person, as the case may be, receives from a holder
of a Debt Security an indemnification claim form, the Company or any such
Person, as the case may, shall within 15 business days remit to such holder a
certified check in an amount equal to the sum of (a) the product of any gain
recognized as a result of the Indemnifiable Transaction and the highest marginal
tax rate in effect at the time of such Indemnifiable Transaction (the
"Indemnification Amount") and (b) the product of the Indemnification Amount and
such tax rate. For these purposes, a holder's gain shall equal the amount by
which the fair market value of a Debt Security at the time of such Indemnifiable
Transaction exceeds such holder's adjusted tax basis in such Debt Security.
Issuer's Obligation to Purchase Debt Securities on Change in Control
Upon the occurrence of a "Change in Control" as defined in the Indenture,
the Issuer shall mail within 15 days of the occurrence of such Change in Control
written notice regarding such Change in Control to the Trustee of the Debt
Securities of each series and to every holder thereof, after which the Issuer
shall be obligated, at the election of each holder thereof, to purchase such
Debt Securities. Under the Indenture, a "Change in Control" is deemed to occur
upon (a) the occurrence of any event requiring the filing of any report under or
in response to Schedule 13D or 14D-1 pursuant to the Exchange Act disclosing
beneficial ownership of either (i) 50 percent or more of the Company's Common
Stock then outstanding, or (ii) 50 percent or more of the voting power of the
voting stock of the Company then outstanding, (b) the consummation of sale,
transfer, lease, or conveyance of the Company's properties and assets
substantially as an entirety to any Person or Persons who are not Subsidiaries
of the Company; and (c) the consummation of any consolidation of the Company
with or merger of the Company into any other Person in a transaction in which
either (i) the Company is not the sole surviving corporation or (ii) Common
Stock existing prior to such transaction is converted into cash, securities or
other property and those exchanging the Company's Common Stock do not receive
either (x) 75 percent or more of the survivor's common stock or (y) 75 percent
or more of the voting power of the survivor's voting stock, following the
consummation of such transaction. The notice to be sent to every Trustee and
holder upon a Change in Control shall, in addition, be published at least once
in an Authorized Newspaper (as defined in the Indenture) and shall state (a) the
event causing the Change in Control and the date thereof, (b) the date by which
notice of such Change in Control is required by the Indenture to be given, (c)
the date (which date shall be 35 business days after the occurrence of the
Change in Control) by which the Issuer shall purchase Debt Securities to be
purchased pursuant to the selling holder's exercise of rights on Change in
Control (the "Change in Control Purchase Date"), (d) the price specified in such
Debt Securities for their purchase by the Issuer (the "Change in Control
Purchase Price"), (e) the name and address of the Trustee, (f) the procedure for
surrendering Debt Securities to the Trustee or other designated office or agent
for payment, (g) a statement of the Issuer's obligation to make prompt payment
on proper surrender of such Debt Securities, (h) the procedure for
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holders' exercise of rights of sale of such Debt Securities by delivery of a
"Change in Control Purchase Notice," and (i) the procedures for withdrawing a
Change in Control Purchase Notice. No purchase of any Debt Securities shall be
made if there has occurred and is continuing an Event of Default under the
Indenture (other than default in payment of the Change in Control Purchase
Price). In connection with any purchase of Debt Securities under this paragraph,
the Issuer will comply with all Federal and state securities laws, including,
specifically, Rule 13E-4, if applicable, of the Exchange Act, and any related
Schedule 13E-4 required to be submitted under such Rule. (Section 1501)
Discharge, Defeasance and Covenant Defeasance
The Issuer or the Company may discharge certain obligations to holders of
any series of Debt Securities that have not already been delivered to the
Trustee for cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption within one
year) by depositing with the Trustee, in trust, funds in U.S. dollars or in the
Foreign Currency in which such Debt Securities are payable in an amount
sufficient to pay the entire indebtedness on such Debt Securities with respect
to principal (and premium, if any) and interest to the date of such deposit (if
such Debt Securities have become due and payable) or to the Maturity thereof, as
the case may be. (Section 401)
The Indenture provides that, unless the provisions of Section 402 thereof
are made inapplicable to the Debt Securities of or within any series pursuant to
Section 301 thereof, the Issuer or the Company may elect either (a) to defease
and be discharged from any and all obligations with respect to such Debt
Securities (except for, among other things, the obligation to pay Additional
Amounts, if any upon the occurrence of certain events of taxation, assessment or
governmental charge with respect to payments on such Debt Securities and other
obligations to register the transfer or exchange of such Debt Securities, to
replace temporary or mutilated, destroyed, lost or stolen Debt Securities, to
maintain an office or agency with respect to such Debt Securities and to hold
moneys for payment in trust) ("defeasance") (Section 402(2)) or (b) to be
released from its obligations with respect to such Debt Securities under the
covenants described in "Limitation on Liens" and "Limitation on Sale/Leaseback
Transactions" above or, if provided pursuant to Section 301 of the Indenture,
its obligations with respect to any other covenant, and any omission to comply
with such obligations shall not constitute a default or an Event of Default with
respect to such Debt Securities ("covenant defeasance"). (Section 402(3))
Defeasance or covenant defeasance, as the case may be, shall be conditioned upon
the irrevocable deposit by the Issuer or the Company with the Trustee, as trust
funds in trust of an amount, in U.S. dollars or in the Foreign Currency in which
such Debt Securities are payable at Stated Maturity, or Government Obligations
(as defined below), or both, applicable to such Debt Securities which through
the scheduled payment of principal and interest in accordance with their terms
will provide money in an amount sufficient to pay the principal of (and premium,
if any) and interest on such Debt Securities on the scheduled due dates
therefor. (Section 402(4))
Such a trust may only be established if, among other things, (i) the
applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the Indenture or any other material
agreement or instrument to which the Issuer or the Company is a party or by
which any of them is bound, (ii) no default or Event of Default with respect to
the Debt Securities to be defeased shall have occurred and be continuing on the
date of the establishment of such a trust and (iii) the Issuer or the Company
has delivered to the Trustee an Opinion of Counsel (as specified in the
Indenture) to the effect that the holders of such Debt Securities will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such defeasance or covenant defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance or covenant defeasance had not
occurred, and such Opinion of Counsel, in the case of defeasance, must refer to
and be based upon a letter ruling of the Internal Revenue Service received by
the Company, a Revenue Ruling published by the Internal Revenue Service or a
change in applicable U.S. federal income tax law occurring after the date of the
Indenture. (Section 402(4)(b) and (c))
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"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments. (Section 101)
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government or the governments in the
confederation which issued the Foreign Currency in which the Debt Securities of
a particular series are payable, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America or
such government or governments which issued the Foreign Currency in which the
Debt Securities of such series are payable, the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government or governments, which, in the case of
clauses (i) and (ii), are not callable or redeemable at the option of the issuer
or issuers thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or
a specific payment of interest on or principal of or any other amount with
respect to any such Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian with respect to the Government Obligation or the specific payment of
interest on or principal of or any other amount with respect to the Government
Obligation evidenced by such depository receipt. (Section 101)
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Issuer or the Company has deposited funds and/or Government Obligations to
effect defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of the Indenture or the terms of such Debt
Security to receive payment in a currency other than that in which such deposit
has been made in respect of such Debt Security, or (b) a Conversion Event (as
defined below) occurs in respect of the Foreign Currency in which such deposit
has been made, the indebtedness represented by such Debt Security shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any) and interest, if any, on such
Debt Security as such Debt Security becomes due out of the proceeds yielded by
converting the amount or other properties so deposited in respect of such Debt
Security into the currency in which such Debt Security becomes payable as a
result of such election or such Conversion Event based on (x) in the case of
payments made pursuant to clause (a) above, the applicable market exchange rate
for such currency in effect on the second business day prior to such payment
date, or (y) with respect to a Conversion Event, the applicable market exchange
rate for such Foreign Currency in effect (as nearly as feasible) at the time of
the Conversion Event. (Section 402(5))
"Conversion Event" means the cessation of use of (i) a Foreign Currency
other than the ECU both by the government of the country or the confederation
which issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Union or (iii) any currency unit or composite currency other than the ECU for
the purposes for which it was established. Unless otherwise provided in the
applicable Prospectus Supplement, all payments of principal of (and premium, if
any) and interest on any Debt Security that are payable in a Foreign Currency
that ceases to be used by the government or confederation of issuance shall be
made in U.S. dollars. (Section 101)
In the event the Issuer or the Company effects covenant defeasance with
respect to any Debt Securities and such Debt Securities are declared due and
payable because of the occurrence of any Event of Default other than an Event of
Default with respect to Sections 1005 and 1006 of the Indenture (which Sections
would no longer be applicable to such Debt Securities after such covenant
defeasance) or with respect to any other covenant as to which there has been
covenant defeasance, the amount in such Foreign Currency in which such Debt
Securities are payable, and Government Obligations on deposit with the Trustee,
will be sufficient to pay amounts due on such Debt Securities at the time of the
Stated Maturity but may not be sufficient to pay amounts due on such Debt
Securities at the time of the
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acceleration resulting from such Event of Default. However, the Issuer or the
Company would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
Under the Indenture, the Issuer and the Company are required to furnish to
the Trustee annually a statement as to performance by the Issuer and the Company
of certain of their respective obligations under the Indenture and as to any
default in such performance. The Issuer and the Company are also required to
deliver to the Trustee, within five days after occurrence thereof, written
notice of any event which after notice or lapse of time or both would constitute
an Event of Default. (Section 1009)
Modification and Waiver
Modifications and amendments of the Indenture may be made by the Issuer,
the Company and the Trustee with the consent of the holders of not less than
66 2/3 percent of the aggregate principal amount of the Debt Securities of each
series affected thereby; provided, however, that no such modification or
amendment may, without the consent of the holder of each Debt Security affected
thereby, (a) change the Stated Maturity of the principal of, or premium, if any,
on, or any installment of principal, if any, of or interest on, or any
Additional Amounts with respect to, any Debt Security, (b) reduce the principal
amount of, or premium or interest on, or any Additional Amounts with respect to
any Debt Security, (c) change the coin or currency in which any Debt Security or
any premium or any interest thereon or any Additional Amounts with respect
thereto is payable, (d) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity of any Debt Securities (or, in
the case of redemption, on or after the Redemption Date or, in the case of
repayment at the option of any holder, on or after the date for repayment or in
the case of a change in control, after the change in control purchase date), (e)
reduce the percentage and principal amount of the outstanding Debt Securities,
the consent of whose holders is required in order to take certain actions, (f)
change any obligation of the Issuer or the Company to maintain an office or
agency in the places and for the purposes required by the Indenture, (g) modify
or affect in any manner adverse to the holders of the Debt Securities the terms
and conditions of the obligations of the Issuer under the Debt Securities, and
of the Company under the Guarantees, in respect of the due and punctual payment
of principal of, or any premium or interest on, the Debt Securities, or (h)
modify any of the above provisions. (Section 902)
The holders of at least a majority in aggregate principal amount of Debt
Securities of any series may, on behalf of the holders of all Debt Securities of
such series, waive compliance by the Issuer or the Company with certain
restrictive provisions of the Indenture. (Section 1008) The holders of not less
than a majority in aggregate principal amount of Debt Securities of any series
may, on behalf of all holders of Debt Securities of such series, waive any past
default and its consequences under the Indenture with respect to the Debt
Securities of such series, except a default (a) in the payment of principal of
(or premium, if any) or any interest on or any Additional Amounts with respect
to Debt Securities of such series or (b) in respect of a covenant or provision
of the Indenture that cannot be modified or amended without the consent of the
holder of each Debt Security of any series. (Section 513)
Consolidation, Merger and Sale of Assets
The Company may, without the consent of the holders of the Debt Securities,
consolidate or merge with or into, or convey, transfer or lease its properties
and assets as an entirety or substantially as an entirety to, any Person that is
organized and validly existing under the laws of any domestic jurisdiction, or
may permit any such Person to consolidate with or merge into the Company or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to the Company, provided that any successor Person
assumes the Company's obligations on the Debt Securities and under the
Guarantees and the Indenture, that after giving effect to the transaction no
Event of Default, and no event
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which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing, and that certain other conditions are
met. (Section 801)
The Issuer may, without the consent of the holders of the Debt Securities,
consolidate or merge into, or convey, transfer or lease its properties and
assets substantially as an entirety to, any Person organized and validly
existing under the laws of the jurisdiction of organization of such Person, or
may permit any such Person to consolidate with or merge into the Issuer or
convey, transfer or lease its properties and assets substantially as an entirety
to the Issuer, provided that (a) any successor Person assumes the Issuer's
obligations on the Debt Securities and under the Indenture (including any
obligation to pay any Additional Amounts), (b) immediately after giving effect
to such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred and
be continuing, and (c) any such successor Person shall expressly agree by a
supplemental indenture (i) to immediately indemnify (pursuant to the procedure
described above under "-- Indemnification Procedure") the holder of each Debt
Security against (A) any tax, assessment or governmental charge imposed on such
holder or required to be withheld or deducted from any payment to such holder as
a consequence of such consolidation, merger, conveyance, transfer or lease, and
(B) any other tax costs or other tax expenses of the act of such consolidation,
merger, conveyance, transfer or lease (except that if the Issuer or any such
Person delivers an opinion of an independent counsel or a tax consultant of
recognized standing that the holder will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such transaction, a holder will
have such right to indemnification only if and when gain for U.S. federal income
tax purposes is actually imposed on such holder), and (ii) that all payments
pursuant to the Debt Securities in respect of the principal of and any premium
and interest on the Debt Securities, as the case may be, shall be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, assessments or governmental charges of whatever nature imposed or levied
by or on behalf of the jurisdiction of organization of such successor Person or
any political subdivision or taxing authority thereof or therein, unless such
taxes, duties, assessments or governmental charges are required by such
jurisdiction or any such subdivision or authority to be withheld or deducted, in
which case such successor Person will pay such additional amounts of, or in
respect of, principal and any premium and interest ("Successor Additional
Amounts") as will result (after deduction of such taxes, duties, assessments or
governmental charges and any additional taxes, duties, assessments or
governmental charges payable in respect of such) in the payment to each holder
of a Debt Security of the amounts which would have been payable pursuant to the
Debt Securities had no such withholding or deduction been required, subject to
the same exceptions as would apply with respect to the payment by the Issuer of
Additional Amounts in respect of the Debt Securities (see "--Payment of
Additional Amounts"). (Section 802)
Payment of Additional Amounts
All payments of, or in respect of, principal of and any premium and
interest on any Debt Securities issued by the Issuer shall be made without
withholding or deduction for, or on account of, any present or future taxes,
duties, levies, assessments or governmental charges of whatever nature imposed
or levied by or on behalf of the jurisdiction (or any political subdivision or
taxing authority thereof or therein) in which the Issuer is incorporated or
resident (or deemed for tax purposes to be resident) (the "applicable taxing
jurisdiction"), unless such taxes, duties, levies, assessments or governmental
charges are required by the applicable taxing jurisdiction or any such
subdivision or authority to be withheld or deducted. In that event, the Issuer
will pay by way of additional interest such additional amounts of, or in respect
of, principal of and any premium and interest ("Additional Amounts") as will
result (after deduction of such taxes, duties, levies, assessments or
governmental charges and any additional taxes, duties, levies, assessments or
governmental charges payable in respect of such Additional Amounts) in the
payment to each holder of such Debt Securities of the amounts which would have
been payable in
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respect of such Debt Securities had no such withholding or deduction been
required (Section 1004), except that no Additional Amounts shall be so payable
for or on account of:
(a) any tax, duty, levy, assessment or other governmental charge which
would not have been imposed but for the fact that such holder:
(i) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically
present in, the applicable taxing jurisdiction or otherwise had some
connection with the applicable taxing jurisdiction other than the mere
ownership of such Debt Security;
(ii) presented (if presentation is required) such Debt Security for
payment in the applicable taxing jurisdiction, unless such Debt Security
could not have been presented for payment elsewhere;
(iii) presented (if presentation is required) such Debt Security
more than 30 days after the date on which the payment in respect of such
Debt Security first became due and payable or provided for, whichever is
later, except to the extent that the holder would have been entitled to
such Additional Amounts if it had presented such Debt Security for
payment on any days within such period of 30 days;
(iv) is, directly or indirectly, taken to be an Associate of the
Issuer; or
(v) entered into or participated in a scheme to avoid Australian
interest withholding tax, being a scheme which the Issuer was neither a
party to nor participated in, in respect of which the Australian
Commissioner of Taxation has made a determination that Australian
interest withholding tax is payable in respect of the amount;
(b) any estate, inheritance, gift, sale, transfer, personal property
or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of, or in respect
of, principal of or any premium or interest on the Debt Securities;
(d) any tax, assessment or other governmental charge that is imposed
or withheld by reason of the failure to comply by the holder or the
beneficial owner of a Debt Security with a request of the Issuer addressed
to the holder (i) to provide information concerning the nationality,
residence or identity of the holder or such beneficial owner or (ii) to
make any declaration or other similar claim or satisfy any information or
reporting requirement, which, in the case of (i) or (ii), is required or
imposed by a statute, treaty, regulation or administrative practice of the
applicable taxing jurisdiction as a precondition to exemption from all or
part of such tax, assessment or other governmental charge; or
(e) any combination of items (a), (b), (c) and (d);
nor shall Additional Amounts be paid with respect to any payment of the
principal of or any premium or interest on any such Debt Security to any holder
who is a fiduciary or partnership or other than the sole beneficial owner of
such payment to the extent such payment would be required by the laws of the
applicable taxing jurisdiction to be included in the income for tax purposes of
a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to such
Additional Amounts had it been the holder of the Debt Security.
Whenever there is mentioned, in any context, the payment of principal of,
or any premium or interest on, or in respect of, any Debt Securities of any
series issued by the Issuer or the net proceeds received on the sale or exchange
of any Debt Security of any series issued by the Issuer, such mention shall be
deemed to include mention of the payment of Additional Amounts provided for in
the Indenture to the
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extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the Indenture.
Redemption for Taxation Reasons
If as the result of any change in or any amendment to the laws, regulations
or published tax rulings of the applicable taxing jurisdiction affecting
taxation, or any change in the official administration, application or
interpretation of such laws, regulations or published tax rulings either
generally or in relation to any Debt Securities issued by the Issuer, which
change or amendment becomes effective on or after the original issue date of
such Debt Securities or which change in official administration, application or
interpretation shall not have been available to the public prior to such issue
date, it is determined by the Issuer that (a) the Issuer would be required to
pay any Additional Amounts pursuant to the Indenture or the terms of any Debt
Security (i) in respect of interest, on the next succeeding Interest Payment
Date or (ii) in respect of the principal of any Discounted Securities on the
date of such determination, assuming that a payment in respect of such principal
were required to be made on such date under the terms of the Debt Securities,
and (b) such obligation cannot be avoided by the Company or the Issuer taking
reasonable measures available to it, in either case (i) or (ii) above the Issuer
may, at its option, redeem all (but not less than all) of the Debt Securities of
any series in respect of which such Additional Amounts would be so payable at
any time, upon not less than 30 nor more than 60 days' written notice as
provided in the Indenture, at a Redemption Price equal to 100 percent of the
principal amount thereof plus accrued interest to the date fixed for redemption
(except that any such Debt Securities that are Outstanding Discounted Securities
may be redeemed at the Redemption Price specified in the terms thereof);
provided, however, that (a) no such notice of redemption may be given earlier
than 60 days prior to the earliest date on which the Issuer would be obligated
to pay such Additional Amounts were a payment then due in respect of the Debt
Securities, and (b) at the time any such redemption notice is given, such
obligation to pay such Additional Amounts must remain in effect. If (a) the
Issuer shall have on any date (the "Succession Date") consolidated with or
merged into, or conveyed or transferred or leased its properties and assets as
an entirety or substantially as an entirety to, any Successor referred to under
"-- Consolidation, Merger and Sale of Assets" above which is organized under the
laws of any jurisdiction other than the United States of America, any State
thereof or the District of Columbia or the jurisdiction in which the Issuer is
organized, (b) as the result of any change in or any amendment to the laws,
regulations or published tax rulings of such jurisdiction or organization, or of
any political subdivision or taxing authority thereof or therein, affecting
taxation, or any change in the official administration, application or
interpretation of such laws, regulations or published tax rulings either
generally or in relation to any particular Debt Securities, which change or
amendment becomes effective on or after the Succession Date or which change in
official administration, application or interpretation shall not have been
available to the public prior to such Succession Date and is notified to the
Issuer, such Successor would be required to pay any Successor Additional Amounts
(as defined under "-- Consolidation, Merger and Sale of Assets" above) pursuant
to the Indenture or the terms of any Debt Securities (i) in respect of interest
on any Debt Securities on the next succeeding Interest Payment Date, or (ii) in
respect of the principal of any Discounted Securities on the date of such
determination (assuming such principal were required to be paid on such date
under the terms of the Debt Securities) and (c) such obligation cannot be
avoided by the Company, the Issuer or such Successor taking reasonable measures
available to it, the Issuer or such Successor may at its option, redeem all (but
not less than all) of the Debt Securities of any series in respect of which such
Successor Additional Amounts would be so payable at any time, upon not less than
30 nor more than 60 days' written notice as provided in the Indenture, at a
Redemption Price equal to 100 percent of the principal amount thereof plus
accrued interest to the date fixed for redemption (except that any such Debt
Securities that are Outstanding Discounted Securities may be redeemed at the
Redemption Price specified in the terms thereof); provided, however, that (a) no
such notice of redemption may be given earlier than 60 days prior to the
earliest date on which a Successor would be obligated to pay such Successor
Additional Amounts were a payment then due in respect of the Debt Securities,
and (b) at the time any such redemption notice is given, such obligation to pay
such Successor Additional Amounts must remain in effect.
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Concerning the Trustee
Unless otherwise specified in the applicable Prospectus Supplement, The
Chase Manhattan Bank, New York, New York will be the Trustee under the
Indenture.
Service of Process
The Indenture provides that the Issuer will irrevocably appoint CT
Corporation System, 1633 Broadway, New York, New York 10019, as its agent for
service of process in any suit, action or proceeding with respect to the
Indenture, the Debt Securities or the Guarantees issued thereunder and for
actions brought under the federal or state securities laws brought in any
federal or state court located in New York City, and submit to such
jurisdiction.
Governing Law
The Indenture, the Debt Securities and the Guarantees will be governed by
and construed in accordance with the laws of the State of New York, but without
regard to the principles of conflicts of laws thereof, except as may otherwise
be required by mandatory provisions of law and except that all matters governing
the authorization and execution of the Indenture and the Debt Securities by the
Issuer will be governed by and construed in accordance with the laws of the
jurisdiction of incorporation of the Issuer.
DTC BOOK-ENTRY-ONLY SYSTEM
Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be registered under a book-entry-only system maintained by
DTC. The book-entry-only system will evidence ownership interests in the Debt
Securities in book-entry-only form. Purchasers of ownership interests in the
Debt Securities will not receive certificates representing their interests in
the Debt Securities purchased. Transfers of ownership interests will be effected
on the records of DTC and its participating organizations (the "DTC
Participants") pursuant to rules and procedures established by DTC.
Certain of the following information concerning the procedures and record
keeping with respect to ownership interests in the Debt Securities, payment of
interest and other payments on the Debt Securities to DTC Participants or
Beneficial Owners (as hereafter defined), confirmation and transfer of ownership
interests in the Debt Securities and other related transactions by and between
DTC, the DTC Participants and Beneficial Owners is based solely on information
contained in a published report of DTC.
DTC, an automated clearinghouse for securities transactions, will act as
securities depository for the Debt Securities. DTC is a limited-purpose trust
company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code, and a "clearing agency" registered pursuant to the
provisions of Section 17A of the 1934 Act. DTC was created to hold securities of
the DTC Participants and to facilitate the clearance and settlement of
securities transactions among DTC Participants in such securities through
electronic book-entry changes in accounts of the DTC Participants, thereby
eliminating the need for physical movement of security certificates. DTC
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations, some of which (and/or
their representatives) own DTC. Access to the DTC system is also available to
others such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a DTC Participant, either directly or
indirectly (the "Indirect Participants"). The rules applicable to DTC and DTC
Participants are on file with the SEC.
The ownership of fully-registered Debt Securities in the form of global
bonds or notes will be registered in the name of Cede & Co., as nominee for DTC.
Ownership interests in the Debt Securities may be purchased by or through DTC
Participants and will be recorded on the records of the DTC Participants, whose
interests in turn will be recorded on a computerized book-entry-only system
operated by DTC. Such DTC Participants and the person for whom they acquire
interests in the Debt Securities as
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nominees ("Beneficial Owner") will not receive Debt Security certificates, but
each such DTC Participant will receive a credit balance in the records of DTC in
the amount of such DTC Participant's interest in the Debt Securities, which will
be confirmed in accordance with DTC's standard procedures. Each such Beneficial
Owner for whom a DTC Participant acquires an interest in the Debt Securities, as
nominee, may desire to make arrangements with such DTC Participant to have all
communications of the Company and the Trustee to DTC which may affect such
Beneficial Owner forwarded in writing by such DTC Participant and to have
notifications made of all payments of principal and interest with respect to his
beneficial interest. The Issuer, the Company and the Trustee will treat DTC (or
its nominee) as the sole and exclusive owner of the Debt Securities registered
in its name for the purposes of payment of the principal and interest on the
Debt Securities, giving any notice permitted or required to be given to holders
under the Indenture, registering the transfer of Debt Securities, and for all
other purposes whatsoever, and shall not be affected by any notice to the
contrary. Neither the Issuer, the Company nor the Trustee shall have any
responsibility or obligation to any DTC Participant, any person claiming a
beneficial ownership interest in the Debt Securities under or through DTC or any
DTC Participant, or any other person which is not shown on the registration
books of the Trustee as being a holder, with respect to: (i) the accuracy of any
records maintained by DTC or any DTC Participant; (ii) the payment by DTC or any
DTC Participant of any amount in respect of the principal or interest on the
Debt Securities; (iii) any notice which is permitted or required to be given to
holders thereunder or under the conditions to transfers or exchanges adopted by
the Issuer or Company; or (iv) any other action taken by DTC as a holder.
Principal and interest on the Debt Securities will be paid by the Trustee.
Disbursement of such payments to the DTC Participants is the responsibility of
DTC and disbursement of such payments to the Beneficial Owners is the
responsibility of the DTC Participants or the Indirect Participants. NEITHER THE
ISSUER, THE COMPANY NOR THE TRUSTEE WILL HAVE ANY RESPONSIBILITY OR OBLIGATIONS
TO SUCH DTC PARTICIPANTS OR THE PERSONS FOR WHOM THEY ACT AS NOMINEES WITH
RESPECT TO THE PAYMENTS TO OR THE PROVIDING OF NOTICE FOR THE DTC PARTICIPANTS,
OR THE INDIRECT PARTICIPANTS, OR THE BENEFICIAL OWNERS SO LONG AS CEDE & CO., AS
NOMINEE OF DTC, IS THE REGISTERED OWNER OF THE DEBT SECURITIES, REFERENCES
HEREIN TO THE SECURITY HOLDERS OR REGISTERED OWNERS OF THE DEBT SECURITIES SHALL
MEAN CEDE & CO., AND SHALL NOT MEAN THE BENEFICIAL OWNERS.
For every transfer and exchange of beneficial ownership of Debt Securities,
a Beneficial Owner may be charged a sum sufficient to cover any tax, fee or
other governmental charge that may be imposed in relation thereto.
When reference is made to any action which is required or permitted to be
taken by the Beneficial Owners, such reference shall only relate to action by
such Beneficial Owner, or others permitted to act (by statute, regulation or
otherwise) on behalf of such Beneficial Owners for such purposes. When notices
are given, they shall be sent by the Trustee to DTC only. Conveyance of notices
and other communications by DTC to DTC Participants and Indirect Participants
and in turn by DTC Participants and Indirect Participants to Beneficial Owners
will be governed by arrangements among them, subject to any statutory and
regulatory requirements then in effect.
Principal and interest payments on the Debt Securities will be made to DTC
or its nominee, Cede & Co., as registered owner of the Debt Securities. Upon
receipt of any such payments, DTC's current practice is to immediately credit
the accounts of the DTC Participants in accordance with their respective
holdings shown on the records of DTC. Payments by DTC Participants and Indirect
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such DTC Participant or Indirect Participant.
DTC may determine to discontinue providing its services with respect to the
Debt Securities at any time by giving notice to the Issuer or the Company and
discharging its responsibilities with respect thereto under applicable law. In
addition, the Issuer or the Company may determine that continuation of the
system of book-entry-only transfers through DTC (or a successor securities
depository) is not in the best interests of the Beneficial Owners or is
burdensome to the Issuer or the Company. If for either reason
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the book-entry-only system is discontinued, certificates for the Debt Securities
will be delivered to the Beneficial Owners thereof.
Certain of the information contained in this sub-section has been extracted
from a report from DTC. No representation is made by the Issuer or the Company
as to the completeness or the accuracy of such information or as to the absence
of material adverse changes in such information subsequent to the date hereof.
Same-Day Settlement and Payment
Unless otherwise indicated in the applicable Prospectus Supplement,
settlement for the Debt Securities will be made by a purchaser in immediately
available funds. While the Debt Securities are in the book-entry-only system
described above, all payments of principal and interest will be made by the
Trustee on behalf of the Issuer or the Company to DTC in immediately available
funds.
Secondary trading in long-term debt securities is generally settled in
clearing-house or next-day funds. Unless otherwise set forth in the applicable
Prospectus Supplement, while the Debt Securities are in the book-entry-only
system described above, they will trade in DTC's Same-Day Fund Settlement System
until maturity. During such period, secondary market trading activity in the
Debt Securities will settle in immediately available funds. No assurance can be
given as to the effect, if any, of settlement in immediately available funds on
the trading activity in the Debt Securities.
CERTAIN TAX CONSIDERATIONS
The following summary of certain United States federal income and
Australian tax consequences of the purchase, ownership and disposition of the
Debt Securities is based upon laws, regulations, rulings and decisions now in
effect, all of which are subject to change or possible differing
interpretations. It deals only with Debt Securities held as capital assets and
does not purport to address all aspects of United States federal income or
Australian taxes that may be relevant to an investment in the Debt Securities,
nor does it address the United States or Australian tax treatment applicable to
persons in special tax situations, such as financial institutions, insurance
companies, regulated investment companies, dealers in securities or currencies,
persons holding Debt Securities as a hedge against currency risks or as a
position in a "straddle" for tax purposes, or persons whose functional currency
is not the United States dollar. It also does not deal with holders other than
original purchasers (except where otherwise specifically noted). Persons
considering the purchase of the Debt Securities should consult their own tax
advisors concerning the application of United States federal income and
Australian tax laws to their particular situations as well as any consequences
of the purchase, ownership and disposition of the Debt Securities arising under
the laws of any other taxing jurisdiction.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The statements below regarding United States federal tax consequences are
based upon the provisions of the United States Internal Revenue Code of 1986, as
amended (the "Code") and regulations, rulings and judicial decisions thereunder
as of the date of this Prospectus. Such authorities may be repealed, revoked or
modified, in which case tax consequences different from those discussed below
could result.
As used herein, the term "U.S. holder" means a beneficial owner of a Debt
Security that is for United States federal income tax purposes (i) a citizen or
resident of the United States, (ii) a corporation, partnership or other entity
created or organized in or under the laws of the United States or of any
political subdivision thereof (other than a partnership that is not treated as a
United States person under any applicable Treasury regulations), (iii) an estate
the income of which is subject to United States federal income taxation
regardless of its source, (iv) a trust if a court within the United States is
able to exercise primary supervision of the administration of the trust and one
or more United States persons have the authority to control all substantial
decisions of the trust, or (v) any other person whose income or gain in
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<PAGE> 36
respect of a Debt Security is effectively connected with the conduct of a United
States trade or business. Notwithstanding the preceding clause (iv), to the
extent provided in regulations, certain trusts in existence on August 20, 1996
and treated as United States persons prior to such date that elect to continue
to be so treated also shall be considered U.S. holders. As used herein, the term
"non-U.S. holder" means a holder of a Debt Security that is not a U.S. holder.
The following summary of United States federal income tax considerations is
based on the advice of Woodard, Hall & Primm, P.C., Houston, Texas, special tax
counsel to the Company, whose opinion is set forth herein.
Taxation of Interest. The gross amount of interest (including Additional
Amounts, if any, accrued or received in respect of the Debt Securities)
generally will be includible in the gross income of a U.S. holder and such
income generally will be treated as foreign source passive income for United
States federal income tax purposes. If any foreign source taxes were to be paid
or withheld in respect of payments on the Debt Securities, a U.S. holder may be
eligible, subject to a number of complex limitations, for a foreign tax credit.
Taxation of Dispositions. A U.S. holder that owns the Debt Securities as
capital assets will recognize gain or loss for United States federal income tax
purposes upon the sale or other disposition of the Debt Securities in an amount
equal to the difference between the amount realized and the U.S. holder's tax
basis in the Debt Securities. Gain or loss recognized by a U.S. holder on a sale
or other disposition of the Debt Securities will be (i) mid-term if the Debt
Securities have been held for 18 months or less, but more than one year, or (ii)
long-term if the Debt Securities have been held for more than 18 months.
A U.S. holder of a Debt Security may recognize gain or loss for United
States federal income tax purposes equal to the difference between the fair
market value of the Debt Security and such U.S. holder's adjusted tax basis in
such Debt Security in the event that (a) the Issuer consolidates with or merges
into any other Person or conveys, transfers or leases its properties and assets
substantially as an entirety to any other Person, (b) the Company assumes the
obligations of the Issuer under any series of Debt Securities, (c) the Issuer
consolidates or merges into any other Person, (d) the Issuer exercises its
option to redeem the Debt Securities or (e) the Issuer assigns its obligations
under any series of Debt Securities to any other Person. Additionally, a U.S.
holder will recognize on disposition of a Debt Security the amount of any
accrued but unpaid interest and the amount of any market discount associated
with such Debt Security. The Indenture provides that, where a U.S. holder (other
than entities then exempt from taxation under Section 501 of the Code)
recognizes gain for United States federal income tax purposes as a result of
such a merger or assumption, any such Person (in the case of (b) or (c)) or the
Company (in the case of (b)) shall indemnify such U.S. holder of a Debt Security
in an amount equal to the sum of (i) the Indemnification Amount and (ii) the
product of the Indemnification Amount and the highest marginal tax rate in
effect at the time of such above-described transaction. For a description of the
procedures by which a U.S. holder may exercise its indemnification rights, see
"Description of Debt Securities and Guarantees -- Indemnification Procedure."
Original Issue Discount. The Debt Securities may be issued with original
issue discount for United States federal income tax purposes. U.S. holders of
the Debt Securities will be required to include original issue discount in gross
income as it accrues, on a constant-yield basis, regardless of their method of
accounting.
The amount of the original issue discount in the Debt Securities will be
the difference between the stated redemption price at maturity and the issue
price of the Debt Securities. The "issue price" of the Debt Securities will be
the price at which a substantial amount of the Debt Securities are sold to the
public for cash (excluding sales to bond houses, brokers or similar persons or
organizations acting in the capacity as underwriters, placement agents or
wholesalers).
The "stated redemption price" at maturity of a debt instrument is the total
of all payments to be made on the instrument other than payments of qualified
stated interest. "Qualified stated interest" includes only interest that is
unconditionally payable in cash or property (other than debt instruments of
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<PAGE> 37
the Issuer) at least annually at a single fixed rate that appropriately takes
into account the length of the interval between payments.
Holders of the Debt Securities must include in gross income, as interest,
the daily portions of original issue discount for each day during the taxable
year on which the Debt Securities were held. The daily portions of the original
issue discount will be determined by allocating to each day in each accrual
period the ratable portion of the original issue discount allocable to that
period. (The accrual periods may be of any length and may vary in length over
the term of a debt instrument, provided that each accrual period is no longer
than one year, and each scheduled payment of interest or principal occurs on
either the final day or the first day of an accrual period.) The original issue
discount allocable to an accrual period will equal the product of the adjusted
issue price of the Debt Securities at the beginning of the accrual period and
the Debt Securities' yield to maturity. The adjusted issue price of the Debt
Securities at the start of any accrual period will be the issue price of the
Debt Securities increased by the amount of the original issue discount that has
accrued in all previous accrual periods and decreased by the amount of any
payments previously made on the first day of the current accrual period. Because
the U.S. holders of the Debt Securities will include original issue discount in
income as it accrues, actual payments of cash interest (other than qualified
stated interest) on the Debt Securities will not trigger any additional interest
income to the holders.
Information Reporting and Backup Withholding. The Company, on behalf of the
Issuer, will provide annual information statements to U.S. holders of the Debt
Securities and information returns to the United States Internal Revenue Service
(the "IRS") regarding the amount of original issue discount, if any, that
accrued on the Debt Securities during the year.
The Company, on behalf of the Issuer, its paying agent, or other
withholding agent may be required to withhold and remit to the IRS 31 percent of
the interest payments on the Debt Securities if the IRS notifies the Company, on
behalf of the Issuer, its paying agent, or other withholding agent that the U.S.
holder thereof is subject to backup withholding, or if such U.S. holder fails to
provide a taxpayer identification number, provides an incorrect taxpayer
identification number, fails to certify that such holder is not subject to
backup or otherwise fails to comply with applicable requirements of the backup
withholding rules. Certain holders (including, among others, corporations) are
not subject to these backup withholding rules. Any amount paid as backup
withholding would be creditable against the U.S. holder's United States federal
income tax liability.
AUSTRALIAN TAX CONSIDERATIONS
The following is a general summary of the Australian tax position of
holders of Debt Securities, where such Debt Securities are held as investments.
The statements below are based on the provisions of the Income Tax Assessment
Act 1936 (the "Tax Act"), regulations, published rulings and court decisions now
in effect, all of which are subject to change (including changes in
interpretation) possibly with retroactive effect. The comments below do not
constitute tax advice. Prospective investors should consult their professional
tax advisers.
The following summary is based on the assumption that no holder of Debt
Securities will be either a:
(i) resident of Australia for the purposes of the Tax Act; or
(ii) non-resident of Australia with a permanent establishment or fixed
base in Australia.
Special considerations apply to holders in these circumstances which are
not addressed in the following summary.
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<PAGE> 38
DEBT SECURITIES NOT ISSUED AT A DISCOUNT
Payments of Principal, Premium and Interest
Non-resident holders of Debt Securities not issued at a discount will not
be subject to Australian income tax on payments of principal, premium (to the
extent that the premium is not regarded as interest) and interest.
Under section 128F of the Tax Act, interest on debentures (the definition
of which would include the Debt Securities) issued outside Australia by
companies resident in Australia is exempt from Australian interest withholding
tax if:
(i) the interest is paid outside Australia; and
(ii) the Issuer or at least one of the underwriters of the Debt
Securities satisfies one of a number of alternative public offer tests
specified in section 128F of the Tax Act.
The Issuer and the Company have been advised by their Australian tax
counsel, Arthur Robinson & Hedderwicks, that, provided the Debt Securities are
offered and sold in the manner contemplated by this Prospectus and the
underwriting agreement attached as an exhibit to the Registration Statement, the
payment of interest and premium, if any, on the Debt Securities will not be
subject to Australian withholding tax. However, section 128F was recently
amended and no official interpretations thereunder have been rendered.
Consequently, the Australian taxing authorities could take a different view and
determine that the payment of such interest and premium, if any, would be
subject to Australian withholding tax of ten percent. In such event, the Issuer
has agreed to pay Additional Amounts to compensate certain affected holders for
such withholding tax. Such imposition of Australian withholding tax would
entitle the Issuer, at its option, to redeem the Debt Securities in whole, but
not in part, at the outstanding principal balance thereof plus accrued interest.
See "Provisions Applicable to All Debt Securities -- Redemption for Tax
Reasons."
Gains on Sale or Redemption
Gains made on the disposal of any Debt Security held by a non-resident of
Australia as a capital asset will not be subject to Australian income tax
provided:
(i) the Debt Securities have not at any time been used by the holder
in carrying on a trade or business wholly or partly at or through a
permanent establishment in Australia; and
(ii) the gain does not have an Australian source.
The source of any gain derived on the disposal of a Debt Security will be
determined by the factual circumstances of the disposal. The profit on disposal
of a Debt Security should not have an Australian source where the Debt Security
is acquired and disposed of pursuant to contractual arrangements entered into
and concluded outside Australia and the seller and the purchaser of the Debt
Securities are not residents of Australia and do not have permanent
establishments in Australia.
To the extent that any gain is treated as interest, section 128F does not
provide an exemption for gains made on the disposal of Debt Securities.
DEBT SECURITIES ISSUED AT A DISCOUNT
Tax on Discount Component
If the Debt Securities are issued at a discount such that it is reasonably
likely at the time of issue that the sum of all payments (other than interest
which is expressed to be payable at intervals of not more than 1 year) will
exceed the issue price of the Debt Securities by an amount greater than 1.5
percent, they will be treated as a "qualifying security" for Australian tax
purposes. Australian interest withholding tax may be payable on the discount
component when the Debt Securities are redeemed. The current rate of withholding
tax is ten percent. However, as discussed above, an exemption from withholding
tax may
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be available under section 128F of the Tax Act in these circumstances depending
on whether a public offer test specified in section 128F is satisfied.
Gains on Sale
Where a non-resident who does not carry on business at or through a
permanent establishment in Australia disposes of Debt Securities which were
issued at discount to a person other than the Issuer, section 128AA of the Tax
Act may apply to deem any excess between the sale price paid by the purchaser
and the issue price of the Debt Securities to constitute interest for Australian
withholding tax purposes. Where section 128AA of the Tax Act applies, the seller
of the Debt Securities may be subject to Australian interest withholding tax in
respect of the deemed interest received. Section 128F does not provide an
exemption from interest withholding tax in those circumstances.
With the exception of the possible interest withholding tax implications
referred to immediately above, the description of the Australian taxation
consequences applicable on the sale or redemption of Debt Securities not issued
at a discount also applies to Debt Securities issued at a discount.
AUSTRALIAN DEATH DUTIES
Under current Australian law, no Australian State or Federal estate duty or
other inheritance taxes will be payable in respect of the Debt Securities on the
death of a holder, irrespective of the holder's domicile.
PLAN OF DISTRIBUTION
The Issuer may sell the Debt Securities (i) through underwriters or
dealers, (ii) directly to a limited number of institutional purchasers or to a
single purchaser, (iii) through agents, or (iv) through any combination of the
above. An accompanying Prospectus Supplement will set forth the terms of the
offering of the Debt Securities offered thereby, including the name or names of
any underwriter, the purchase price of the Debt Securities and the net proceeds
to the Issuer from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers.
If underwriters are used in the sale of Debt Securities, such Debt
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Unless otherwise set forth in the Prospectus Supplement,
the several obligations of the underwriters to purchase any Debt Securities
offered thereby will be subject to certain conditions precedent and the
underwriters will be obligated to take and pay for all of such Debt Securities,
if any are taken.
The Debt Securities may be sold directly by the Issuer or through
underwriters or agents designated by the Issuer and the Company from time to
time. Any agent involved in the offer or sale of the Debt Securities will be
named, and any commissions payable by the Issuer to such agents will be set
forth, in an accompanying Prospectus Supplement. Unless otherwise indicated in
such Prospectus Supplement, any such agent will be acting on a reasonable
efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Issuer will authorize
underwriters or other persons acting as the Issuer's agents to solicit offers by
certain institutions to purchase Debt Securities from the Issuer pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases such institutions must be approved by
the Issuer and the Company. The obligations of any purchaser under such contract
will be subject to the condition that the purchase of the offered Debt
Securities shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect to the validity of
performance of such contracts.
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<PAGE> 40
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for the Company or the
Issuer in the ordinary course of business.
Agents and underwriters may be entitled under agreements entered into with
the Company and the Issuer to indemnification by the Company and the Issuer
against certain civil liabilities, including liabilities under the Securities
Act.
The place and time of delivery for the Debt Securities in respect of which
this Prospectus is delivered will be set forth in an accompanying Prospectus
Supplement.
LEGAL MATTERS
Certain U.S. legal matters regarding the Debt Securities offered hereby
under laws other than United States federal or state securities laws have been
passed upon for the Company by its Vice President and General Counsel, Z. S.
Kobiashvili. As of the date of this Prospectus, Mr. Kobiashvili owns 1,291
shares of Apache Common Stock through the Company's retirement/401(k) savings
plan; holds employee stock options to purchase 31,900 shares of Apache Common
Stock, of which options to purchase 13,225 shares are currently exercisable; and
holds a conditional grant under the Company's 1996 Share Price Appreciation Plan
relating to 18,900 shares of Apache Common Stock, none of which is vested.
Certain U.S. legal matters will also be passed upon for the Company and the
Issuer by Woodard, Hall & Primm, P.C., Houston, Texas; certain Australian legal
matters will be passed upon for the Company and the Issuer by Arthur Robinson &
Hedderwicks, Melbourne, Victoria, Australia; and certain U.S. legal matters will
be passed upon for the underwriters or agents by Brown & Wood LLP, New York, New
York.
EXPERTS
The audited consolidated financial statements of the Company, incorporated
by reference into this Prospectus, have been audited by Arthur Andersen LLP,
independent public accountants ("Arthur Andersen"), as indicated in their
reports with respect thereto. In Arthur Andersen's report on the consolidated
financial statements of the Company, that firm states that with respect to
DEKALB, for the year ended December 31, 1994, its opinion is based on the report
of other independent public accountants, namely Coopers & Lybrand, Chartered
Accountants ("Coopers & Lybrand"). The financial statements referred to above
have been incorporated by reference herein in reliance upon the authority of
those firms as experts in accounting and auditing in giving said reports.
The audited consolidated financial statements of DEKALB incorporated by
reference into this Prospectus have been audited by Coopers & Lybrand, as
indicated in their report with respect thereto, and have been incorporated by
reference herein in reliance upon the authority of that firm as experts in
accounting and auditing in giving said report.
The information incorporated by reference herein regarding the proved
reserves of the Company's U.S., Canadian and certain international properties
was prepared by the Company and reviewed by Ryder Scott Company Petroleum
Engineers ("Ryder Scott"), as stated in their letter reports with respect
thereto, and is so incorporated by reference in reliance upon the authority of
said firm as experts in such matters. The information incorporated by reference
herein regarding the total estimated proved reserves acquired in March, 1995
from Texaco Exploration and Production Inc. was prepared by the Company and
reviewed by Ryder Scott, as stated in their letter reports with respect thereto,
and is so incorporated by reference in reliance upon the authority of said firm
as experts in such matters. The information incorporated by reference herein
regarding the total proved reserves of DEKALB was prepared by DEKALB and for the
four years ended December 31, 1994 was reviewed by Ryder Scott, as stated in
their letter reports with respect thereto, and is so incorporated by reference
in reliance upon the authority of said firm as experts in such matters.
The information incorporated by reference herein regarding the proved
reserves of the Company's Egyptian properties was prepared by the Company and
reviewed by Netherland, Sewell & Associates,
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<PAGE> 41
Inc. ("Netherland, Sewell"), as stated in their letter reports with respect
thereto, and is so incorporated by reference in reliance upon the authority of
said firm as experts in such matters. A portion of the information incorporated
by reference herein regarding the total proved reserves of Aquila Energy
Resources Corporation ("Aquila") acquired in September 1995 by the Company was
prepared by Netherland, Sewell as of December 31, 1994, as stated in their
letter report with respect thereto, and is so incorporated by reference in
reliance upon the authority of said firm as experts in such matters. Netherland,
Sewell did not review any of the reserves of Aquila acquired during 1995.
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$100,000,000
APACHE FINANCE PTY LTD
7% NOTES DUE 2009
IRREVOCABLY AND UNCONDITIONALLY GUARANTEED BY
APACHE CORPORATION
[APACHE LOGO]
------------
PROSPECTUS SUPPLEMENT
MARCH 2, 1999
------------
SALOMON SMITH BARNEY
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
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