<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 28, 2000
REGISTRATION NO. 333-32580
333-32580-01
333-32580-02
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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APACHE CORPORATION
APACHE TRUST I
APACHE TRUST II
(Exact name of each registrant as specified in its charter or certificate of
trust)
<TABLE>
<S> <C>
DELAWARE NO. 41-0747868
DELAWARE APPLICATION PENDING
DELAWARE APPLICATION PENDING
(State of incorporation or organization) (I.R.S. Employer Identification Numbers)
ONE POST OAK CENTRAL Z. S. KOBIASHVILI
2000 POST OAK BOULEVARD, SUITE 100 2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400 HOUSTON, TEXAS 77056-4400
(713) 296-6000 (713) 296-6000
(Address, including zip code, and (Name, address, including zip code, and
telephone number, including area code, of telephone number, including area code,
registrant's executive offices) of agent for service)
</TABLE>
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Copies to:
<TABLE>
<S> <C>
JOHN B. CLUTTERBUCK CRAIG E. CHAPMAN
MAYOR, DAY, CALDWELL & KEETON, L.L.P. BROWN & WOOD LLP
700 LOUISIANA, SUITE 1900 ONE WORLD TRADE CENTER
HOUSTON, TEXAS 77002-2778 NEW YORK, NEW YORK 10048-0557
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act of 1933 registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
-------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY
BE CHANGED. APACHE AND THE APACHE TRUSTS MAY NOT SELL THESE SECURITIES
UNTIL THE SECURITIES AND EXCHANGE COMMISSION DECLARES THE REGISTRATION
STATEMENT EFFECTIVE. THIS PRELIMINARY PROSPECTUS IS NOT AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY THESE SECURITIES IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 28, 2000.
PROSPECTUS
$1,000,000,000
APACHE CORPORATION
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
COMMON STOCK PURCHASE CONTRACTS
COMMON STOCK PURCHASE UNITS
APACHE TRUST I
APACHE TRUST II
TRUST PREFERRED SECURITIES
GUARANTEED BY
APACHE CORPORATION
-------------------------
By this prospectus, Apache Corporation may from time to time offer our
common stock and related rights, preferred stock, depositary shares, contracts
to purchase shares of common stock, common stock purchase units, senior debt
securities and/or subordinated debt securities, and each of the Apache Trusts
may from time to time offer its trust preferred securities guaranteed by us.
This prospectus provides a general description of the securities Apache and
the Apache Trusts may offer. Supplements to this prospectus will describe the
specific terms of the securities that Apache and/or the Apache Trusts actually
offer. This prospectus may not be used to sell securities unless it is
accompanied by a prospectus supplement that describes those securities.
Before you invest, you should carefully read this prospectus, any
applicable prospectus supplement and any information under the heading "Where
You Can Find More Information."
Apache and the Apache Trusts may sell these securities to or through
underwriters, to other purchasers and/or through agents. The accompanying
prospectus supplement will specify the names of any underwriters or agents.
-------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------------
This prospectus is dated , 2000.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
About This Prospectus....................................... 1
Where You Can Find More Information......................... 1
Cautionary Statements Regarding Forward-Looking
Statements................................................ 3
Apache Corporation.......................................... 3
Apache Trusts............................................... 3
Ratios of Earnings to Fixed Charges and to Combined Fixed
Charges and Preferred Stock Dividends..................... 5
Use of Proceeds............................................. 5
The Securities Apache and the Apache Trusts May Offer....... 6
Description of Capital Stock................................ 7
Description of Depositary Shares............................ 15
Description of Debt Securities.............................. 18
Description of Trust Preferred Securities................... 34
Description of Trust Preferred Securities Guarantees........ 40
Description of Common Stock Purchase Contracts and Units.... 43
Book-Entry Securities....................................... 44
Plan of Distribution........................................ 46
Legal Matters............................................... 47
Experts..................................................... 47
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that Apache and the
Apache Trusts filed with the Securities and Exchange Commission utilizing a
"shelf" registration process. Under this shelf process, Apache and/or the Apache
Trusts may sell any combination of the securities described in this prospectus
in one or more offerings up to a total offering price of $1,000,000,000,
including the U.S. dollar equivalent of non-U.S. dollar offerings. This
prospectus provides you with a general description of the securities Apache and
the Apache Trusts may offer. Each time Apache and/or the Apache Trusts offer to
sell securities, Apache and/or the Apache Trusts will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus. You should read this prospectus, the applicable
prospectus supplement and the additional information described below under the
heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. Our Securities and
Exchange Commission filings are available to the public over the Internet at the
Securities and Exchange Commission's web site at http://www.sec.gov. You may
also read and copy any document we file at the Securities and Exchange
Commission's public reference rooms located at:
- 450 Fifth Street, N.W.
Washington, D.C. 20549;
- 7 World Trade Center
New York, New York 10048; and
- Citicorp Center
500 West Madison Street
Chicago, Illinois 60661.
Please call the Securities and Exchange Commission at 1-800-SEC-0330 for
further information on the public reference rooms and their copy charges.
Our common stock has been listed and traded on the New York Stock Exchange
since 1969 and the Chicago Stock Exchange since 1960. Accordingly, you may
inspect the information we file with the Securities and Exchange Commission at
the New York Stock Exchange, 20 Broad Street, New York, New York 10005, and at
the Chicago Stock Exchange, One Financial Place, 440 S. LaSalle Street, Chicago,
Illinois 60605-1070. For more information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with them, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus,
and information that we file later with the Securities and Exchange Commission
will automatically update and supersede this information. Until we sell all of
the securities covered by this prospectus, we incorporate by reference the
documents filed by us listed below and any future filings we make with the
Securities and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934:
- Annual Report on Form 10-K for the fiscal year ended December 31, 1998;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
- Quarterly Report on Form 10-Q for the quarter ended June 30, 1999;
- Quarterly Report on Form 10-Q for the quarter ended September 30, 1999;
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- Current Report on Form 8-K dated March 2, 1999, as amended by Amendment
No. 1 on Form 8-K/A filed on March 5, 1999;
- Current Report on Form 8-K dated April 29, 1999, as amended by Amendment
No. 1 on Form 8-K/A filed on May 12, 1999 and Amendment No. 2 on Form
8-K/A filed on May 24, 1999;
- Current Report on Form 8-K dated May 18, 1999, as amended by Amendment
No. 1, on Form 8-K/A filed on July 30, 1999;
- Current Report on Form 8-K dated June 22, 1999;
- Current Report on Form 8-K dated October 5, 1999;
- Current Report on Form 8-K dated November 30, 1999, as amended by
Amendment No. 1 on Form 8-K/A filed on December 14, 1999;
- Current Report on Form 8-K dated December 17, 1999; and
- Current Report on Form 8-K dated February 3, 2000.
Each of these documents is available from the Securities and Exchange
Commission's web site and public reference rooms described above. You may also
request a copy of these filings, excluding exhibits, at no cost by writing or
telephoning Cheri L. Peper, Corporate Secretary, at our principal executive
office, which is:
Apache Corporation
2000 Post Oak Boulevard, Suite 100
Houston, Texas 77056-4400
(713) 296-6000.
There are no separate financial statements of the Apache Trusts in this
prospectus. We do not believe these financial statements would be helpful
because:
- the Apache Trusts are wholly-owned subsidiaries of Apache, which files
consolidated financial information under the Securities Exchange Act;
- the Apache Trusts will not have any independent operations other than
issuing trust preferred securities and trust common securities,
purchasing debt securities of Apache Corporation and other necessary or
incidental activities as described in this prospectus; and
- Apache guarantees the trust preferred securities of the Apache Trusts.
Our web site address is http://www.apachecorp.com. The information on our
web site is not incorporated by reference into this prospectus. You should rely
only on the information incorporated by reference or provided in this prospectus
or any prospectus supplement. Neither Apache nor either Apache Trust has
authorized anyone to provide you with different information.
Neither Apache nor either Apache Trust is making an offer of the securities
covered by this prospectus in any state where the offer is not permitted. You
should not assume that the information in this prospectus or any prospectus
supplement or in any other document incorporated by reference in this prospectus
is accurate as of any date other than the date of those documents.
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CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
prospectus contain "forward-looking statements" within the meaning of Section
27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act
of 1934. These statements are based on our current expectations, estimates and
projections. Therefore, they could ultimately prove to be inaccurate. Our plans
for capital and exploratory spending and for cost and expense reduction may
change if business conditions, such as energy prices and world economic
conditions, change. Other factors that may have a direct bearing on our results
of operations and financial condition are:
- competitive practices in the industries in which we compete;
- fluctuations in oil and gas prices that have not been properly hedged or
that are inconsistent with our marketing activities;
- operational and systems risks;
- environmental liabilities that are not covered by indemnity or insurance;
- general economic and capital market conditions, including fluctuations in
interest rates; and
- the impact of current and future laws and governmental regulations
(particularly environmental regulations) affecting the energy industry in
general and Apache's operations in particular.
APACHE CORPORATION
Apache Corporation is a Delaware corporation formed in 1954. We are an
independent energy company that explores for, develops and produces natural gas,
crude oil and natural gas liquids. In North America, our exploration and
production interests are focused on the Gulf of Mexico, the Anadarko Basin, the
Permian Basin, the Gulf Coast and the Western Sedimentary Basin of Canada.
Outside of North America, we have exploration and production interests offshore
Western Australia and in Egypt and exploration interests in Poland and offshore
The People's Republic of China.
We hold interests in many of our U.S., Canadian and international
properties through operating subsidiaries, such as Apache Canada Ltd., DEK
Energy Company, which was formerly known as DEKALB Energy Company, Apache Energy
Limited, which was formerly known as Hadson Energy Limited, Apache
International, Inc., and Apache Overseas, Inc. The properties referred to in
this prospectus, in any prospectus supplement or in any other document
incorporated by reference in this prospectus may be held by our subsidiaries. We
treat all operations as one line of business.
APACHE TRUSTS
We created Apache Trust I and Apache Trust II, each of which is a Delaware
business trust, pursuant to trust agreements and the filing of certificates of
trust with the Delaware Secretary of State. We will execute amended and restated
trust agreements for the Apache Trusts, referred to in this prospectus as the
"trust agreements," which will state the terms and conditions for the Apache
Trusts to issue and sell their trust preferred securities and trust common
securities. We have filed a form of trust agreement as an exhibit to the
registration statement of which this prospectus forms a part.
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The Apache Trusts will exist solely to:
- issue and sell their trust preferred securities and trust common
securities;
- use the proceeds from the sale of their trust preferred securities and
trust common securities to purchase Apache's debt securities; and
- engage in other activities that are necessary or incidental to the above
purposes.
We will hold directly or indirectly all of the trust common securities of
each of the Apache Trusts. The trust common securities will represent an
aggregate liquidation amount equal to at least 3% of each Apache Trust's total
capitalization. The trust preferred securities will represent the remaining
percentage of each Apache Trust's total capitalization. The trust common
securities will have terms substantially identical to, and will rank equal in
priority of payment with, the trust preferred securities. However, if Apache
defaults on the debt securities owned by an Apache Trust or another event of
default under the trust agreement occurs, then, so long as the default
continues, cash distributions and liquidation, redemption and other amounts
payable or deliverable on the securities of that trust must be paid or delivered
to the holders of the trust preferred securities of that trust before the
holders of the common securities of that trust.
The Apache Trusts may not borrow money, issue debt, execute mortgages or
pledge any of their assets.
The trust preferred securities will be guaranteed by us as described in
this prospectus and the applicable prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement, the
following four trustees will conduct each Apache Trust's business and affairs:
- The Chase Manhattan Bank, a New York banking corporation, as property
trustee;
- Chase Manhattan Bank Delaware, a Delaware banking corporation, as
Delaware trustee; and
- two of our officers, as administrative trustees.
Only we, as direct or indirect owner of the trust common securities, can
remove or replace the administrative trustees. In addition, we can increase or
decrease the number of administrative trustees. Also, we, as direct or indirect
holder of the trust common securities, will generally have the sole right to
remove or replace the property and Delaware trustees. However, if Apache
defaults on the debt securities owned by an Apache Trust or another event of
default under the trust agreement occurs, then, so long as that default is
continuing, the holders of a majority in liquidation amount of the outstanding
trust preferred securities of that trust may remove and replace the property and
Delaware trustees for that trust.
We will pay all fees and expenses related to the Apache Trusts and the
offering of the trust preferred securities. We will also pay all ongoing costs
and expenses of the Apache Trusts, except each trust's obligations under the
trust preferred securities and trust common securities.
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RATIOS OF EARNINGS TO FIXED CHARGES AND
TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
Our ratios of earnings to fixed charges and our ratios of earnings to
combined fixed charges and preferred stock dividends were as follows for the
periods indicated in the table below.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- --------------------------------
1999 1998 1998 1997 1996 1995 1994
----- ----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.......... 2.35 1.18 -- 2.93 2.72 1.15 2.34
Ratio of earnings to combined fixed charges
and preferred stock dividends............. 2.03 1.17 -- 2.93 2.72 1.15 2.34
</TABLE>
Our ratios of earnings to fixed charges and our ratios of earnings to
combined fixed charges and preferred stock dividends were computed based on:
- "earnings," which consist of consolidated income or losses from
continuing operations plus income taxes and fixed charges, except
capitalized interest or, in the case of our ratios of earnings to
combined fixed charges and preferred stock dividends, those earnings plus
preferred stock dividends; and
- "fixed charges," which consist of consolidated interest on indebtedness,
including capitalized interest, amortization of debt discount and
expense, and the estimated portion of rental expense attributable to
interest.
Due to the $243.2 million non-cash write-down of the carrying value of our
U.S. proved oil and gas properties for the year ended December 31, 1998, our
1998 earnings were inadequate to cover fixed charges by $236.8 million and
inadequate to cover combined fixed charges and preferred stock dividends by
$239.7 million.
On May 17, 1995, Apache acquired DEKALB Energy Company, which is now known
as DEK Energy Company, through a merger which resulted in DEKALB becoming a
wholly-owned subsidiary of Apache. The merger was accounted for as a "pooling of
interests." As a result, our financial information for all preceding periods was
restated.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we
expect to use the net proceeds from the sale of our securities for general
corporate purposes, which may include, among other things:
- the repayment of outstanding indebtedness;
- working capital;
- capital expenditures; and
- acquisitions.
The precise amount and timing of the application of such proceeds will
depend upon our funding requirements and the availability and cost of other
funds.
The Apache Trusts will use all proceeds from the sale of the trust common
and trust preferred securities to purchase debt securities of Apache.
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THE SECURITIES APACHE AND THE APACHE TRUSTS MAY OFFER
The descriptions of the securities contained in this prospectus, together
with the applicable prospectus supplements, summarize all the material terms and
provisions of the various types of securities that Apache and the Apache Trusts
may offer. The particular terms of the securities offered by any prospectus
supplement will be described in that prospectus supplement. If indicated in the
applicable prospectus supplement, the terms of the securities may differ from
the terms summarized below. The prospectus supplement will also contain
information, where applicable, about material U.S. federal income tax
considerations relating to the securities, and the securities exchange, if any,
on which the securities will be listed.
We may sell from time to time, in one or more offerings:
- common stock and related rights;
- preferred stock;
- depositary shares;
- common stock purchase contracts;
- common stock purchase units;
- senior debt securities; and/or
- subordinated debt securities
The Apache Trusts may offer and sell from time to time their trust
preferred securities guaranteed by us.
In this prospectus, Apache and the Apache Trusts refer to the common stock
and related rights, preferred stock, depositary shares, common stock purchase
contracts, common stock purchase units, senior debt securities, subordinated
debt securities, trust preferred securities and our guarantees of the trust
preferred securities collectively as "securities."
If Apache and/or the Apache Trusts issue securities at a discount from
their original stated principal or liquidation amount, then, for purposes of
calculating the total dollar amount of all securities issued under this
prospectus, Apache and/or the Apache Trusts will treat the initial offering
price of the securities as the total original principal or liquidation amount of
the securities.
This prospectus may not be used to sell securities unless it is accompanied
by a prospectus supplement.
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<PAGE> 10
DESCRIPTION OF CAPITAL STOCK
The following descriptions of our common stock and preferred stock,
together with the additional information included in any applicable prospectus
supplements, summarize the material terms and provisions of these types of
securities. For the complete terms of our common stock and preferred stock,
please refer to our charter, bylaws and stockholder rights plan that are
incorporated by reference into the registration statement that includes this
prospectus or may be incorporated by reference in this prospectus. The terms of
these securities may also be affected by the General Corporation Law of the
State of Delaware.
Under our charter, our authorized capital stock consists of 215,000,000
shares of common stock, $1.25 par value per share, and 5,000,000 shares of
preferred stock, no par value. We will describe the specific terms of any common
stock or preferred stock we may offer in a prospectus supplement. If indicated
in a prospectus supplement, the terms of any common stock or preferred stock
offered under that prospectus supplement may differ from the terms described
below.
COMMON STOCK
As of February 29, 2000, Apache had approximately 113,640,647 shares of
common stock issued and outstanding. Also as of February 29, 2000, subject to
stock dividends and other events, up to 5,737,900 shares of common stock were
issuable upon conversion of our Series C preferred stock, as described below
under "Preferred Stock -- Series C." Each outstanding share of common stock
currently has attached to it one preferred share purchase right issued under our
stockholder rights plan, which is summarized below. All outstanding shares of
common stock are, and any shares of common stock sold pursuant to this
prospectus will be, duly authorized, validly issued, fully paid and
nonassessable.
Voting
For all matters submitted to a vote of stockholders, each holder of common
stock is entitled to one vote for each share registered in his or her name on
the books of Apache. Our common stock does not have cumulative voting rights. As
a result, subject to the voting rights of Series B and Series C preferred
stockholders and any future holders of our preferred stock, persons who hold
more than 50% of the outstanding common stock entitled to elect members of the
board of directors can elect all of the directors who are up for election in a
particular year.
Dividends
If our board of directors declares a dividend, holders of common stock will
receive payments from the funds of Apache that are legally available to pay
dividends. However, this dividend right is subject to any preferential dividend
rights we have granted to Series B and Series C preferred stockholders or may
grant to future holders of preferred stock.
Liquidation
If Apache is dissolved, the holders of common stock will be entitled to
share ratably in all the assets that remain after we pay our liabilities and any
amounts we may owe to the persons who hold our preferred stock.
Other Rights and Restrictions
Holders of common stock do not have preemptive rights, and they have no
right to convert their common stock into any other securities. Our common stock
is not subject to redemption by Apache. Our charter and bylaws do not restrict
the ability of a holder of common stock to transfer his or her shares of common
stock.
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Delaware law provides that, if we make a distribution to our stockholders
other than a distribution of our capital stock either when we are insolvent or
when we would be rendered insolvent, then our stockholders would be required to
pay back to us the amount of the distribution we made to them, or the portion of
the distribution that causes us to become insolvent, as the case may be.
Listing
Our common stock is listed on the New York Stock Exchange and the Chicago
Stock Exchange under the symbol "APA."
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Norwest Bank
Minnesota, National Association.
PREFERRED STOCK
General
We have 5,000,000 shares of no par preferred stock authorized, of which
25,000 shares have been designated as Series A Junior Participating Preferred
Stock, 100,000 shares have been designated as 5.68% Series B Cumulative
Preferred Stock and 140,000 shares have been designated as Automatically
Convertible Equity Securities, Conversion Preferred Stock, Series C. The
remaining shares of preferred stock are undesignated.
Our charter authorizes our board of directors to issue preferred stock in
one or more series and to determine the voting rights and dividend rights,
dividend rates, liquidation preferences, conversion rights, redemption rights,
including sinking fund provisions and redemption prices, and other terms and
rights of each series of preferred stock.
Series A
The shares of Series A preferred stock are authorized for issuance pursuant
to rights that trade with outstanding Apache common stock and are reserved for
issuance upon the exercise of the rights discussed below under the caption
"-- Stockholder Rights Plan."
Series B
As of February 29, 2000, Apache had issued and outstanding 100,000 shares
of Series B preferred stock in the form of one million depositary shares, each
representing one-tenth ( 1/10) of a share of Series B preferred stock. The
Series B preferred stock has no stated maturity, is not subject to a sinking
fund and is not convertible into Apache common stock or any other securities.
Apache has the option to redeem the Series B preferred stock at $1,000 per share
on or after August 25, 2008. Holders of the depositary shares are entitled to
receive cumulative cash dividends at an annual rate of $5.68 per depositary
share (based on $56.80 for each share of Series B preferred stock) when, as and
if declared by Apache's board of directors.
The Series B preferred stock has a liquidation preference of $1,000 per
share, which is equivalent to $100 per depositary share, plus accrued and unpaid
dividends.
The Series B preferred stock ranks prior and superior to our common stock
and Series A preferred stock as to payment of dividends and distribution of
assets upon our dissolution, liquidation or winding up.
The Series B preferred stock ranks equal to the Series C preferred stock as
to payment of dividends and distribution of assets upon dissolution, liquidation
or winding up.
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If dividends are not paid on the Series B preferred stock, cash payments on
our common stock and any other capital stock of Apache that ranks junior to the
Series B preferred stock as to dividends are prohibited and payments on any
other capital stock of Apache that ranks equal to the Series B preferred stock
as to dividends, including the Series C preferred stock, are restricted.
Shares of Series B preferred stock generally do not have voting rights.
However, if we fail to pay the equivalent of six quarterly dividends payable on
the Series B preferred stock or another class or series of preferred stock that
ranks equally with the Series B preferred stock, including the Series C
preferred stock, then we will increase the size of our board of directors by two
members. The holders of the Series B preferred stock and any other class or
series of preferred stock ranking equally with the Series B preferred stock,
including the Series C preferred stock, voting as a single class together with
any other class of preferred stock ranking equally, will then have the right to
vote for the two additional directors. This voting right would continue until we
have paid all past dividends on all preferred stock.
Without the vote of at least 80% of the outstanding shares of Series B
preferred stock, we may not amend any provision in our charter so as to
adversely affect the powers, preferences, privileges or rights of the Series B
preferred stock.
Without the approval of the holders, voting together as a single class, of
80% of all the shares of Series B preferred stock then outstanding and all
shares of any other series of the preferred stock of Apache ranking equally as
to dividends or upon liquidation, including the Series C preferred stock, we
will not:
- issue, authorize or increase the authorized amount of, or issue or
authorize any obligation or security convertible into or evidencing a
right to purchase, any stock of any class ranking prior to the Series B
preferred stock as to dividends or upon liquidation; or
- reclassify any authorized Apache stock into any stock of any class, or
any obligation or security convertible into or evidencing a right to
purchase such stock, ranking prior to the Series B preferred stock,
provided that no such vote will be required for Apache to take any of these
actions to issue, authorize or increase the authorized amount of, or issue or
authorize any obligation or security convertible into or evidencing a right to
purchase, any stock ranking equally with or junior to the Series B preferred
stock.
Without the approval of the holders of at least a majority of the shares of
Series B preferred stock then outstanding, we will not become a party to any
merger, conversion, consolidation or compulsory share exchange unless the terms
of that transaction do not provide for a change in the terms of the Series B
preferred stock and the Series B preferred stock ranks equally with or prior to
any capital stock of the surviving corporation as to dividends or upon
liquidation, dissolution or winding up other than prior-ranking Apache stock
previously authorized with the consent of holders of the Series B preferred
stock.
Series C
As of February 29, 2000, Apache had issued and outstanding 138,482 shares
of Series C preferred stock in the form of 6,924,100 depositary shares, each
representing one-fiftieth ( 1/50) of a share of Series C preferred stock.
Holders of the shares are entitled to receive cumulative cash dividends at an
annual rate of $2.015 per depositary share (based on $100.75 for each share of
Series C preferred stock) when, as and if declared by Apache's board of
directors.
On May 15, 2002, each depositary share will automatically convert into
shares of Apache common stock at an exchange rate that will be not more than one
share and not less than
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0.8197 shares of Apache common stock per depositary share. The exchange rate
will depend on the current market value of Apache common stock prior to the date
of conversion, and is subject to adjustments for stock dividends and other
events.
At any time prior to May 15, 2002, holders may elect to convert each
depositary share into 0.8197 of a share of Apache common stock, subject to
adjustments for stock dividends and other events.
The Series C preferred stock has a liquidation preference of $1,550 per
share, which is equivalent to $31 per depositary share, plus accrued and unpaid
dividends.
The Series C preferred stock ranks prior and superior to our common stock
and Series A preferred stock as to payment of dividends and distribution of
assets upon our dissolution, liquidation or winding up.
The Series C preferred stock ranks equal to the Series B preferred stock as
to payment of dividends and distribution of assets upon our dissolution,
liquidation or winding up.
If dividends are not paid on the Series C preferred stock, cash payments on
our common stock and any other capital stock of Apache that ranks junior to the
Series C preferred stock as to dividends are prohibited and payments on any
other capital stock of Apache that ranks equal to the Series C preferred stock
as to dividends, including the Series B preferred stock, are restricted.
Shares of Series C preferred stock generally do not have voting rights.
However, if we fail to pay the equivalent of six quarterly dividends payable on
the Series C preferred stock or another class or series of preferred stock that
ranks equally with the Series C preferred stock, including the Series B
preferred stock, then we will increase the size of our board of directors by two
members. The holders of the Series C preferred stock and any other class or
series of preferred stock ranking equally with the Series C preferred stock,
including the Series B preferred stock, voting as a single class together with
any other class of preferred stock ranking equally, will then have the right to
vote for the two additional directors. This voting right would continue until we
have paid all past dividends on all preferred stock.
Without the vote of at least 80% of the outstanding shares of Series C
preferred stock, we may not amend any provision in our charter so as to
adversely affect the powers, preferences, privileges or rights of the Series C
preferred stock.
Without the approval of the holders, voting together as a single class, of
80% of all the shares of Series C preferred stock then outstanding and all
shares of any other series of the preferred stock of Apache ranking equally as
to dividends or upon liquidation, including the Series B preferred stock, we
will not:
- issue, authorize or increase the authorized amount of, or issue or
authorize any obligation or security convertible into or evidencing a
right to purchase, any stock of any class ranking prior to the Series C
preferred stock as to dividends or upon liquidation; or
- reclassify any authorized Apache stock into any stock of any class, or
any obligation or security convertible into or evidencing a right to
purchase such stock, ranking prior to the Series C preferred stock,
provided that no such vote will be required for Apache to take any of these
actions to issue, authorize or increase the authorized amount of, or issue or
authorize any obligation or security convertible into or evidencing a right to
purchase, any stock ranking equally with or junior to the Series C preferred
stock.
Without the approval of the holders of at least a majority of the shares of
Series C preferred stock then outstanding, we will not become a party to any
merger, conversion, consolidation or compulsory share exchange unless the terms
of that transaction do not provide for a change in
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the terms of the Series C preferred stock and the Series C preferred stock ranks
equally with or prior to any capital stock of the surviving corporation as to
dividends or upon liquidation, dissolution or winding up, other than
prior-ranking Apache stock previously authorized with the consent of holders of
the Series C preferred stock.
The depositary shares representing Series C preferred stock are listed on
the New York Stock Exchange under the symbol "APAPrC."
UNDESIGNATED PREFERRED STOCK
This summary of the undesignated preferred stock discusses terms and
conditions may apply to preferred stock offered under this prospectus. The
applicable prospectus supplement will describe the particular terms of each
series of preferred stock actually offered. If indicated in the prospectus
supplement, the terms of any series may differ from the terms described below.
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of any preferred
stock being offered by this prospectus. It does not restate the terms and
provisions in their entirety. We urge you to read our charter and any applicable
certificate of designation that may be on file because they, and not this
description, define the rights of any holders of preferred stock. We have filed
our charter as an exhibit to the registration statement which includes this
prospectus. We will incorporate by reference as an exhibit to the registration
statement the form of any certificate of designation before the issuance of any
series of preferred stock.
The prospectus supplement for any preferred stock that we actually offer
pursuant to this prospectus may include some or all of the following terms:
- the designation of the series of preferred stock;
- the number of shares of preferred stock offered, the liquidation
preference per share and the offering price of the preferred stock;
- the dividend rate or rates of the shares, the method or methods of
calculating the dividend rate or rates, the dates on which dividends, if
declared, will be payable, and whether or not the dividends are to be
cumulative and, if cumulative, the date or dates from which dividends
will be cumulative;
- the amounts payable on shares of the preferred stock in the event of our
voluntary or involuntary liquidation, dissolution or winding up;
- the redemption rights and price or prices, if any, for the shares of
preferred stock;
- any terms, and the amount, of any sinking fund or analogous fund
providing for the purchase or redemption of the shares of preferred
stock;
- any restrictions on our ability to make payments on any of our capital
stock if dividend or other payments are not made on the preferred stock;
- any voting rights granted to the holders of the shares of preferred stock
in addition to those required by Delaware law or our certificate of
incorporation;
- whether the shares of preferred stock will be convertible or exchangeable
into shares of our common stock or any other class of our capital stock,
and, if convertible or exchangeable, the conversion exchange price or
prices, and any adjustment or other terms and conditions upon which the
conversion exchange shall be made;
- any other rights, preferences, restrictions, limitations or conditions
relative to the shares of preferred stock permitted by Delaware law or
our certificate of incorporation;
- any listing of the preferred stock on any securities exchange; and
- the federal income tax considerations applicable to the preferred stock.
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Subject to our charter and to any limitations imposed by any
then-outstanding preferred stock, we may issue additional series of preferred
stock, at any time or from time to time, with such powers, preferences, rights
and qualifications, limitations or restrictions as the board of directors
determines, and without further action of the stockholders, including holders of
our then outstanding preferred stock, if any.
STOCKHOLDER RIGHTS PLAN
In 1995, our board of directors adopted a stockholder rights plan to
replace the former plan adopted in 1986. Under our stockholder rights plan, each
of our common stockholders received a dividend of one "preferred stock purchase
right" for each outstanding share of common stock that the stockholder owned. We
refer to these preferred stock purchase rights as the "rights." Unless the
rights have been previously redeemed, all shares of Apache common stock are
issued with rights. The rights trade automatically with our shares of common
stock and become exercisable only under certain circumstances described below.
The purpose of the rights is to encourage potential acquirors to negotiate
with our board of directors before attempting a takeover bid and to provide our
board of directors with leverage in negotiating on behalf of our stockholders
the terms of any proposed takeover. The rights may have certain anti-takeover
effects. They should not, however, interfere with any merger or other business
combination approved by our board of directors.
The following description is a summary of all the material terms of our
stockholder rights plan. It does not restate these terms in their entirety. We
urge you to read our stockholder rights plan because it, and not this
description, defines the terms and provisions of our plan. Our stockholder
rights plan is incorporated by reference as an exhibit to the registration
statement that includes this prospectus. You may obtain a copy at no charge by
writing to us at the address listed under the caption "Where You Can Find More
Information."
Exercise of Rights
Until a right is exercised, the holder of a right will not have any rights
as a stockholder. When the rights become exercisable, holders of the rights will
be able to purchase from us 1/10,000th of a share of our Series A preferred
stock, at a purchase price of $100, subject to adjustment, per 1/10,000th of a
share.
In general, the rights will become exercisable upon the earlier of:
- ten calendar days after a public announcement that a person or group has
acquired beneficial ownership of 20% or more of the outstanding shares of
our common stock; or
- ten business days after the beginning of a tender offer or exchange offer
that would result in a person or group beneficially owning 30% or more of
our common stock.
Flip in Event
If a person or group becomes the beneficial owner of 20% or more of our
common stock, then each right will then entitle its holder to receive, upon
exercise, a number of shares of our common stock which is equal to the exercise
price of the right divided by one-half of the market price of our common stock
on the date of the occurrence of this event. We refer to this occurrence as a
"flip in event." A flip in event does not occur if there is an offer for all of
our outstanding shares of common stock that our board of directors determines is
fair to our stockholders and in Apache's best interests.
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Flip Over Event
If, at any time after a person or group becomes the beneficial owner of 20%
or more of our common stock, Apache is acquired in a merger or other transaction
in which Apache does not survive or in which our common stock is changed or
exchanged or 50% or more of Apache's assets or earning power is sold or
transferred, then each holder of a right will be entitled to receive, upon
exercise, a number of shares of common stock of the acquiring company in the
transaction equal to the exercise price of the right divided by one-half of the
market price of the acquiring company's common stock on the date of the
occurrence of this event. This exercise right will not occur if the merger or
other transaction follows an offer for all of our outstanding shares of common
stock that our board of directors determines is fair to our stockholders and in
Apache's best interests.
Exchange of Rights
At any time after a flip in event, our board of directors may exchange the
rights by providing to the holder one share of our common stock or 1/10,000th of
a share of our Series A preferred stock for each of the holder's rights.
Redemption of Rights
At any time before a flip in event, we may redeem the rights at a price of
$.01 per right. The rights will expire on the close of business on January 31,
2006, subject to earlier expiration or termination as described in our
stockholder rights plan.
Unless and until the rights become exercisable, they will be transferred
with and only with the shares of Apache common stock.
ANTI-TAKEOVER EFFECT OF PROVISIONS OF APACHE'S CHARTER AND BYLAWS AND DELAWARE
LAW
Apache's charter and bylaws include provisions designed to prevent the use
of certain tactics in connection with a potential takeover of Apache. Please
refer to our charter and bylaws that are incorporated by reference into the
registration statement that includes this prospectus. You may obtain copies at
no charge by writing to us at the address listed under the caption "Where You
Can Find More Information."
Certain provisions of Delaware law described below also have an
anti-takeover effect.
Apache's Bylaws
Apache's board of directors is divided into three classes, with directors
serving staggered three-year terms.
Apache's Charter
Article Nine provides that Apache's board of directors is divided into
three classes, with directors serving staggered three-year terms.
Article Twelve generally stipulates that the affirmative vote of 80% of our
voting shares is required to adopt any agreement for the merger or consolidation
with or into any other corporation which is the beneficial owner of more than 5%
of our voting shares. Article Twelve further provides that such 80% approval is
necessary to authorize any sale or lease of assets between Apache and any
beneficial holder of 5% or more of our voting shares.
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Article Fourteen contains a "fair price" provision which requires that any
tender offer made by a beneficial owner of more than 5% of our outstanding
voting stock in connection with any:
- plan of merger, consolidation or reorganization;
- sale or lease of substantially all of our assets; or
- issuance of our equity securities to the 5% stockholder
must provide at least as favorable terms to each holder of common stock other
than the stockholder making the tender offer.
Article Fifteen contains an "anti-greenmail" mechanism which prohibits
Apache from acquiring any voting stock from the beneficial owner of more than 5%
of Apache's outstanding voting stock, except for acquisitions pursuant to a
tender offer to all holders of voting stock on the same price, terms and
conditions, acquisitions in compliance with Rule 10b-18 of the Securities
Exchange Act of 1934 and acquisitions at a price not exceeding the market value
per share.
Article Sixteen prohibits the stockholders from acting by written consent
in lieu of a meeting.
The affirmative vote of 80% of the voting shares is required to amend or
adopt any provision inconsistent with Articles Nine, Twelve, Fourteen and
Sixteen.
Business Combinations with Interested Stockholders Under Delaware Law
Section 203 of the Delaware General Corporation Law prevents a publicly
held corporation from engaging in a "business combination" with an "interested
stockholder" for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless:
- before the date on which the person became an interested stockholder, the
board of directors of the corporation approved either the business
combination or the transaction in which the person became an interested
stockholder;
- the interested stockholder owned at least 85% of the outstanding voting
stock of the corporation at the beginning of the transaction in which it
became an interested stockholder, excluding stock held by directors who
are also officers of the corporation and by employee stock plans that do
not provide participants with the rights to determine confidentially
whether shares held subject to the plan will be tendered in a tender or
exchange offer; or
- on or after the date on which the interested stockholder became an
interested stockholder, the business combination is approved by the board
of directors and the holders of two-thirds of the outstanding voting
stock of the corporation voting at a meeting, excluding the voting stock
owned by the interested stockholder.
As defined in Section 203, an "interested stockholder" is generally a
person owning 15% or more of the outstanding voting stock of the corporation. As
defined in Section 203, a "business combination" includes mergers,
consolidations, stock and assets sales and other transactions with the
interested stockholder.
The provisions of Section 203 may have the effect of delaying, deferring or
preventing a change of control of Apache.
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DESCRIPTION OF DEPOSITARY SHARES
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the depositary
shares that we may offer under this prospectus and the related deposit
agreements and depositary receipts. Specific deposit agreements and depositary
receipts will contain additional important terms and provisions. The forms of
the applicable deposit agreement and depositary receipt will be incorporated by
reference as an exhibit to the registration statement that includes this
prospectus before we issue any depositary shares.
This summary of depositary agreements, depositary shares and depositary
receipts relates to terms and conditions applicable to these types of securities
generally. The particular terms of any series of depositary shares will be
summarized in the applicable prospectus supplement. If indicated in the
applicable prospectus supplement, the terms of any series may differ from the
terms summarized below.
GENERAL
We may elect to offer fractional shares of preferred stock rather than full
shares of preferred stock. If so, we will issue "depositary receipts" for these
"depositary shares." Each depositary share will represent a fraction of a share
of a particular series of preferred stock. Each holder of a depositary share
will be entitled, in proportion to the fraction of preferred stock represented
by that depositary share, to all the rights, preferences and privileges of the
preferred stock, including dividend, voting, redemption, conversion and
liquidation rights, if any, and all the limitations of the preferred stock. We
will enter into a deposit agreement with a depositary, which will be named in
the applicable prospectus supplement.
In order to issue depositary shares, we will issue preferred stock and
immediately deposit these shares with the depositary. The depositary will then
issue and deliver depositary receipts to the persons who purchase depositary
shares. Each whole depositary share issued by the depositary may represent a
fraction of a share of preferred stock held by the depositary. The depositary
will issue depositary receipts in a form that reflects whole depositary shares,
and each depositary receipt may evidence any number of whole depositary shares.
Pending the preparation of definitive engraved depositary receipts, if any,
a depositary may, upon our written order, issue temporary depositary receipts,
which will temporarily entitle the holders to all the rights pertaining to the
definitive depositary receipts. We will bear the costs and expenses of promptly
preparing definitive depositary receipts and of exchanging the temporary
depositary receipts for such definitive depositary receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash and non-cash distributions it
receives with respect to the underlying preferred stock to the record holders of
depositary shares in proportion to the number of depositary shares they hold,
subject to any obligations of the record holders to file proofs, certificates
and other information and to pay any taxes or other governmental charges. In the
case of any non-cash distribution, Apache may determine that the distribution
cannot be made proportionately or the depositary may determine that it may not
be feasible to make the distribution. If so, the depositary may, with our
approval, adopt a method it deems equitable and practicable to effect the
distribution, including the sale, public or private, of the securities or other
non-cash property it receives in the distribution at a place and on terms it
deems proper. The amounts distributed by the depositary will be reduced by any
amount required to be withheld by Apache or the depositary on account of taxes.
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REDEMPTION OF DEPOSITARY SHARES
If the shares of preferred stock that underlie the depositary shares are
redeemable and we redeem the preferred stock, the depositary will redeem the
depositary shares from the proceeds it receives from the redemption of the
preferred stock it holds. The depositary will redeem the number of depositary
shares that represent the amount of underlying preferred stock that we have
redeemed. The redemption price for depositary shares will be in proportion to
the redemption price per share that we paid for the underlying preferred stock.
If we redeem less than all of the depositary shares, the depositary will select
which depositary shares to redeem by lot, or some substantially equivalent
method.
After a redemption date is fixed, the depositary shares to be redeemed no
longer will be considered outstanding. The rights of the holders of the
depositary shares will cease, except for the rights to receive money or other
property upon redemption. In order to redeem their depositary shares, holders
must surrender their depositary receipts to the depositary.
VOTING THE PREFERRED STOCK
When the depositary receives notice about any meeting at which the holders
of preferred stock are entitled to vote, the depositary will mail the
information contained in the notice to the record holders of depositary shares
related to that preferred stock. Each record holder of depositary shares on the
record date, which will be the same date as the record date for the preferred
stock, will be entitled to instruct the depositary on how to vote the shares of
preferred stock represented by that holder's depositary shares. The depositary
will endeavor, to the extent practicable, to vote the preferred stock
represented by the depositary shares in accordance with these instructions. If
the depositary does not receive instructions from the holders of the depositary
shares, the depositary will abstain from voting the preferred stock that
underlies those depositary shares.
WITHDRAWAL OF PREFERRED STOCK
If a holder of depositary receipts surrenders those depositary receipts at
the corporate office (as defined in the deposit agreement) of the depositary, or
any other office as the depositary may designate, and pays any taxes, charges or
fees, that holder is entitled to delivery at the corporate office of
certificates evidencing the number of shares of preferred stock, but only in
whole shares, and any money and other property represented by those depositary
receipts. If the depositary receipts we deliver evidence a number of depositary
shares in excess of the number of whole shares of preferred stock to be
withdrawn, the depositary will deliver to us at the same time a new depositary
receipt evidencing that excess number of depositary shares. We do not expect
that there will be any public trading market for the shares of preferred stock
except those represented by the depositary shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
Apache and the depositary can agree, at any time, to amend the form of
depositary receipt and any provisions of the deposit agreement. However, if an
amendment has a material adverse effect on the rights of the holders of related
depositary shares, the holders of at least a majority of the depositary shares
then outstanding must first approve the amendment. Every holder of a depositary
receipt at the time an amendment becomes effective will be bound by the amended
deposit agreement. However, subject to any conditions in the deposit agreement
or applicable law, no amendment can impair the right of any holder of a
depositary share to receive shares of the related preferred stock, or any money
or other property represented by the depositary shares, when they surrender
their depositary receipts.
Unless otherwise specified in the applicable prospectus supplement, the
deposit agreement may be terminated by us or by the depositary if there has been
a final distribution in respect of
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the preferred stock in connection with any liquidation, dissolution or winding
up of Apache and that distribution has been distributed to the holders of
depositary receipts.
CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and the government charges that
relate solely to the depositary arrangements. We will also pay the charges of
each depositary, including charges in connection with the initial deposit of the
related series of preferred stock, the initial issuance of the depositary
shares, and all withdrawals of shares of the related series of preferred stock.
However, holders of depositary shares will be required to pay transfer and other
taxes and government charges, as provided in the deposit agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time. We may remove the depositary at any
time. Any resignation or removal will take effect when we appoint a successor
depositary. We must appoint the successor depositary within 60 days after
delivery of the notice of resignation or removal. The successor depositary must
be a bank or trust company that has its principal office in the United States
and has a combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
We will be required to furnish certain information to the holders of the
preferred stock underlying any depositary shares. The depositary, as the holder
of the underlying preferred stock, will forward any report or information it
receives from us to the holders of depositary shares.
Neither the depositary nor Apache will be liable if its ability to perform
its obligations under the deposit agreement is prevented or delayed by law or
any circumstance beyond its control. Each of Apache and the depositary will be
obligated to use its best judgment and to act in good faith in performing its
duties under the deposit agreement. Each of Apache and the depositary will be
liable only for gross negligence and willful misconduct in performing its duties
under the deposit agreement. They will not be obligated to appear in, prosecute
or defend any legal proceeding with respect to any depositary receipts,
depositary shares or preferred stock unless they receive what they, in their
sole discretion, determine to be a satisfactory indemnity from one or more
holders of the depositary shares. Apache and the depositary will evaluate any
proposed indemnity in order to determine whether the financial protection
afforded by the indemnity is sufficient to reduce each party's risk to a
satisfactory and customary level. Apache and the depositary may rely on the
advice of legal counsel or accountants of their choice. They may also rely on
information provided by persons they believe, in good faith, to be competent,
and on documents they believe, in good faith, to be genuine.
The applicable prospectus supplement will identify the depositary's
corporate trust office. Unless the prospectus supplement indicates otherwise,
the depositary will act as transfer agent and registrar for depositary receipts,
and if we redeem shares of preferred stock, the depositary will act as
redemption agent for the corresponding depositary receipts.
TITLE
Apache, each depositary and any agent of Apache or the applicable
depositary may treat the registered owner of any depositary share as the
absolute owner of the depositary shares for all purposes, including making
payment, regardless of whether any payment in respect of the depositary share is
overdue and regardless of any notice to the contrary. See "Book-Entry
Securities" below.
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DESCRIPTION OF DEBT SECURITIES
The following description, together with any applicable prospectus
supplement, summarizes all the material terms and provisions of the debt
securities that we may offer under this prospectus and the related trust
indentures. We will issue the senior debt securities under a senior indenture,
dated as of November 2, 1995, as supplemented on October 31, 1996, between us
and The Chase Manhattan Bank, as trustee. We will issue the subordinated debt
securities under a subordinated indenture to be executed in the future by us and
The Chase Manhattan Bank, as trustee. The senior indenture and the subordinated
indenture are together referred to in this prospectus as the "indentures." The
senior debt securities and the subordinated debt securities are collectively
referred to in this prospectus as the "debt securities." The Chase Manhattan
Bank or any successor, in its capacity as trustee under either or both of the
indentures, is referred to as the "trustee" for purposes of this section. The
indentures contain and the debt securities, when issued, will contain additional
important terms and provisions. The indentures are, and the debt securities
prior to their issuance will be, filed as exhibits to the registration statement
that includes this prospectus.
This summary of the indentures and the debt securities relates to terms and
conditions applicable to the debt securities generally. The particular terms of
any series of debt securities will be summarized in the applicable prospectus
supplement. If indicated in the prospectus supplement, the terms of any series
may differ from the terms summarized below.
Neither indenture limits the amount of debt securities we may issue under
it, and each provides that additional debt securities of any series may be
issued up to the aggregate principal amount that we authorize from time to time.
Debt securities may also be issued pursuant to the indentures in transactions
exempt from the registration requirements of the Securities Act of 1933. Those
debt securities will not be considered in determining the aggregate amount of
securities issued under this prospectus.
Unless otherwise indicated in the applicable prospectus supplement, we will
issue the debt securities in denominations of $1,000 or integral multiples of
$1,000.
Principal and any premium and interest in respect to the debt securities
will be payable, and the debt securities will be transferable, at the corporate
trust office of the trustee, unless we specify otherwise in the applicable
prospectus supplement. At our option, however, payment of interest may be made
by check mailed to the registered holders of the debt securities at their
registered addresses.
We will describe special U.S. federal income tax and other considerations
relating to debt securities denominated in foreign currencies or units of two or
more foreign currencies in the applicable prospectus supplement.
Unless we specify otherwise in the applicable prospectus supplement, the
covenants contained in the indentures and the debt securities will not provide
special protection to holders of debt securities if we enter into a highly
leveraged transaction, recapitalization or restructuring. Nothing in the
indentures or the debt securities will in any way limit the amount of
indebtedness or securities that we or our subsidiaries, as defined in the
indenture, may incur or issue.
GENERAL
The prospectus supplement relating to the particular series of debt
securities being offered will specify whether they are senior or subordinated
debt securities and the amounts, prices and terms of those debt securities.
These terms may include:
- the designation, aggregate principal amount and authorized denominations
of the debt securities;
- the date or dates on which the debt securities will mature;
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- the percentage of the principal amount at which the debt securities will
be issued;
- the date on which the principal of the debt securities will be payable;
- whether the debt securities will be issued as registered securities,
bearer securities or a combination of the two;
- whether the debt securities will be issued in the form of one or more
global securities and whether such global securities will be issued in a
temporary global form or permanent global form;
- the currency or currencies or currency unit or units of two or more
currencies in which debt securities are denominated, for which they may
be purchased, and in which principal and any premium and interest is
payable;
- if the currency or currencies or currency unit or units for which debt
securities may be purchased or in which principal and any premium and
interest may be paid is at our election or at the election of a
purchaser, the manner in which an election may be made and its terms;
- the annual rate or rates, which may be fixed or variable, or the method
of determining the rate or rates at which the debt securities will bear
any interest, whether by remarketing, auction, formula or otherwise;
- the date or dates from which any interest will accrue and the date or
dates on which such interest will be payable;
- a description of any provisions providing for redemption, exchange or
conversion of the debt securities at our option, a holder's option or
otherwise, and the terms and provisions of such a redemption, exchange or
conversion;
- information with respect to book-entry procedures relating to global debt
securities;
- any sinking fund terms;
- whether and under what circumstances we will pay "additional amounts," as
defined in the indentures, on the debt securities to any holder who is a
"United States alien," as defined in the indentures, in respect of any
tax, assessment or governmental charge; the term "interest," as used in
this prospectus, includes any additional amounts;
- any modifications or additions to, or deletions of, any of the events of
default or covenants of Apache with respect to the debt securities that
are described in this prospectus;
- if either or both of the sections of the applicable indenture relating to
defeasance and covenant defeasance are not applicable to the debt
securities, or if any covenants in addition to or other than those
specified in the applicable indenture shall be subject to covenant
defeasance;
- any deletions from, or modifications or additions to, the provisions of
the indentures relating to satisfaction and discharge in respect of the
debt securities;
- any index or other method used to determine the amount of payments of
principal of, and any premium and interest on, the debt securities; and
- any other specific terms of the debt securities.
We are not obligated to issue all debt securities of any one series at the
same time. The debt securities of any one series may not bear interest at the
same rate or mature on the same date.
If any of the debt securities are sold for foreign currencies or foreign
currency units or if the principal of, or any premium or interest on, any series
of debt securities is payable in foreign
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currencies or foreign currency units, we will describe the restrictions,
elections, tax consequences, specific terms and other information with respect
to those debt securities and such foreign currencies or foreign currency units
in the applicable prospectus supplement.
Other than as described below under "The Senior Indenture Limits Our
Ability to Incur Liens," "The Senior Indenture Limits Our Ability to Engage in
Sale/Leaseback Transactions" and "We Are Obligated to Purchase Debt Securities
upon a Change in Control," and as may be described in the applicable prospectus
supplement, the indentures do not limit our ability to incur indebtedness or
afford holders of debt securities protection in the event of a decline in our
credit quality or if we are involved in a takeover, recapitalization or highly
leveraged or similar transaction.
RANKING
Senior Debt Securities
Unless otherwise indicated in the applicable prospectus supplement, our
obligation to pay the principal of, and any premium and interest on, the senior
debt securities will be unsecured and will rank equally with all of our other
unsecured unsubordinated indebtedness.
Subordinated Debt Securities
Our obligation to pay the principal of, and any premium and interest on,
any subordinated debt securities will be unsecured and will rank subordinate and
junior in right of payment to all senior indebtedness to the extent provided in
the subordinated indenture and the terms of those subordinated debt securities,
as described below and in any applicable prospectus supplement, which may make
deletions from, or modifications or additions to, the subordination terms
described below.
Upon any payment or distribution of assets or securities of Apache to
creditors upon any liquidation, dissolution, winding-up, reorganization, or any
bankruptcy, insolvency, receivership or similar proceedings in connection with
any insolvency or bankruptcy proceeding of Apache, the holders of senior
indebtedness will first be entitled to receive payment in full of the senior
indebtedness before the holders of subordinated debt securities will be entitled
to receive any payment or distribution in respect of the subordinated debt
securities.
No payments on account of principal or any premium or interest in respect
of the subordinated debt securities may be made if there has occurred and is
continuing a default in any payment with respect to senior indebtedness or an
event of default with respect to any senior indebtedness resulting in the
acceleration of its maturity, or if any judicial proceeding is pending with
respect to any default.
"Indebtedness," for purposes of the subordinated indenture, means:
- indebtedness for borrowed money or for the unpaid purchase price of real
or personal property of, or guaranteed by, Apache, other than accounts
payable arising in the ordinary course of business payable on terms
customary in the trade;
- indebtedness secured by any mortgage, lien, pledge, security interest or
encumbrances of any kind or payable out of the proceeds of production
from property;
- indebtedness which is evidenced by mortgages, notes, bonds, securities,
acceptances or other instruments;
- indebtedness which must be capitalized as liabilities under generally
accepted accounting principles;
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- liabilities under interest rate swap, exchange, collar or cap agreements
and all other agreements or arrangements designed to protect against
fluctuations in interest rates or currency exchange rates;
- liabilities under commodity hedge, commodity swap, exchange, collar or
cap agreements, fixed price agreements and all other agreements or
arrangements designed to protect against fluctuations in oil and gas
prices;
- guarantees and endorsements of obligations of others, directly or
indirectly, and all other repurchase agreements and indebtedness in
effect guaranteed through an agreement, contingent or otherwise, to
purchase that indebtedness, or to purchase or sell property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of the indebtedness or to assure the owner of the
indebtedness against loss, or to supply funds to or in any manner invest
in the debtor, or otherwise to assure a creditor against loss (but
excluding guarantees and endorsements of notes, bills and checks made in
the ordinary course of business); and
- indebtedness relative to the amount of all letters of credit;
provided, however, that such term shall not include any amounts included as
deferred credits on the financial statements of Apache and computed in
accordance with generally accepted accounting principles.
"Senior indebtedness," for purposes of the subordinated indenture, means
all indebtedness, whether outstanding on the date of execution of the
subordinated indenture or thereafter created, assumed or incurred, except
indebtedness ranking equally with the subordinated debt securities or
indebtedness ranking junior to the subordinated debt securities.
"Indebtedness ranking equally with the subordinated debt securities," for
purposes of the subordinated indenture, means indebtedness, whether outstanding
on the date of execution of the subordinated indenture or thereafter created,
assumed or incurred, to the extent the indebtedness specifically by its terms
ranks equally with and not prior to the subordinated debt securities in the
right of payment upon the happening of the dissolution, winding-up, liquidation
or reorganization of Apache. The securing of any indebtedness otherwise
constituting indebtedness ranking equally with the subordinated debt securities
will not prevent the indebtedness from constituting indebtedness ranking equally
with the subordinated debt securities.
"Indebtedness ranking junior to the subordinated debt securities," for
purposes of the subordinated indenture, means any indebtedness, whether
outstanding on the date of execution of the subordinated indenture or thereafter
created, assumed or incurred, to the extent the indebtedness by its terms ranks
junior to and not equally with or prior to
- the subordinated debt securities, and
- any other indebtedness ranking equally with the subordinated debt
securities,
in right of payment upon the happening of the dissolution, winding-up,
liquidation or reorganization of Apache. The securing of any indebtedness
otherwise constituting indebtedness ranking junior to the subordinated debt
securities will not prevent the indebtedness from constituting indebtedness
ranking junior to the subordinated debt securities.
INTEREST RATES AND DISCOUNTS
The debt securities will earn interest at a fixed or floating rate or rates
for the period or periods of time specified in the applicable prospectus
supplement. Unless otherwise specified in the applicable prospectus supplement,
the debt securities will bear interest on the basis of a 360-day year consisting
of twelve 30-day months.
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We may sell debt securities at a substantial discount below their stated
principal amount, bearing no interest or interest at a rate that at the time of
issuance is below market rates. Federal income tax consequences and special
considerations that apply to any series will be described in the applicable
prospectus supplement.
EXCHANGE, REGISTRATION AND TRANSFER
Registered securities of any series that are not global securities will be
exchangeable for other registered securities of the same series and of like
aggregate principal amount and tenor in different authorized denominations. In
addition, if debt securities of any series are issuable as both registered
securities and bearer securities, the holder may choose, upon written request,
and subject to the terms of the applicable indenture, to exchange bearer
securities and the appropriate related coupons of that series into registered
securities of the same series of any authorized denominations and of like
aggregate principal amount and tenor. Bearer securities with attached coupons
surrendered in exchange for registered securities between a regular record date
or a special record date and the relevant date for interest payment shall be
surrendered without the coupon relating to the interest payment date. Interest
will not be payable with respect to the registered security issued in exchange
for that bearer security. That interest will be payable only to the holder of
the coupon when due in accordance with the terms of the indenture. Bearer
securities will not be issued in exchange for registered securities.
You may present registered securities for registration of transfer,
together with a duly executed form of transfer, at the office of the security
registrar or at the office of any transfer agent designated by us for that
purpose with respect to any series of debt securities and referred to in the
applicable prospectus supplement. This may be done without service charge but
upon payment of any taxes and other governmental charges as described in the
applicable indenture. The security registrar or the transfer agent will effect
the transfer or exchange upon being satisfied with the documents of title and
identity of the person making the request. We have appointed the trustee as
security registrar for each indenture. If a prospectus supplement refers to any
transfer agents initially designated by us with respect to any series of debt
securities in addition to the security registrar, we may at any time rescind the
designation of any of those transfer agents or approve a change in the location
through which any of those transfer agents acts. However, if debt securities of
a series are issuable solely as registered securities, we will be required to
maintain a transfer agent in each place of payment for that series, and if debt
securities of a series are issuable as bearer securities, we will be required to
maintain a transfer agent in a place of payment for that series located in
Europe in addition to the security registrar. We may at any time designate
additional transfer agents with respect to any series of debt securities.
In the event of any redemption, we will not be required to:
- issue, register the transfer of or exchange debt securities of any series
during a period beginning at the opening of business 15 days before any
selection of debt securities of that series to be redeemed and ending at
the close of business on the day of mailing of the relevant notice of
redemption; or
- register the transfer of or exchange any registered security, or portion
thereof, called for redemption, except the unredeemed portion of any
registered security being redeemed in part.
PAYMENT AND PAYING AGENTS
Unless we specify otherwise in the applicable prospectus supplement,
payment of principal of, and any premium and interest on, bearer securities will
be payable in accordance with any applicable laws and regulations, at the
offices of those paying agents outside the United States that we may designate
at various times. We will make interest payments on bearer securities and
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the attached coupons on any interest payment date only against surrender of the
coupon relating to that interest payment date. No payment with respect to any
bearer security will be made at any of our offices or agencies in the United
States by check mailed to any U.S. address or by transfer to an account
maintained with a bank located in the United States. If, however, but only if,
payment in U.S. dollars of the full amount of principal of, and any premium and
interest on, bearer securities denominated and payable in U.S. dollars at all
offices or agencies outside the United States is illegal or effectively
precluded by exchange controls or other similar restrictions, then those
payments will be made at the office of our paying agent in the Borough of
Manhattan, The City of New York.
Unless we specify otherwise in the applicable prospectus supplement,
payment of principal of, and any premium and interest on, registered securities
will be made at the office of the paying agent or paying agents that we
designate at various times. However, at our option, we may make interest
payments by check mailed to the address, as it appears in the security register,
of the person entitled to the payments. Unless we specify otherwise in the
applicable prospectus supplement, we will make payment of any installment of
interest on registered securities to the person in whose name that registered
security is registered at the close of business on the regular record date for
such interest.
Unless we specify otherwise in the applicable prospectus supplement, the
Corporate Trust Office of the trustee in the Borough of Manhattan, The City of
New York, will be designated:
- as our sole paying agent for payments with respect to debt securities
that are issuable solely as registered securities; and
- as our paying agent in the Borough of Manhattan, The City of New York,
for payments with respect to debt securities, subject to the limitation
described above in the case of bearer securities, that are issuable
solely as bearer securities or as both registered securities and bearer
securities.
We will name any paying agents outside the United States and any other
paying agents in the United States initially designated by us for the debt
securities in the applicable prospectus supplement. We may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts. However, if
debt securities of a series are issuable solely as registered securities, we
will be required to maintain a paying agent in each place of payment for that
series. If debt securities of a series are issuable as bearer securities, we
will be required to maintain:
- a paying agent in the Borough of Manhattan, The City of New York, for
payments with respect to any registered securities of the series and for
payments with respect to bearer securities of the series in the
circumstance described above, but not otherwise; and
- a paying agent in a place of payment located outside the United States
where debt securities of that series and any attached coupons may be
presented and surrendered for payment.
However, if the debt securities of that series are listed on the London
Stock Exchange, the Luxembourg Stock Exchange or any other stock exchange
located outside the United States, and if the stock exchange requires it, we
will maintain a paying agent in London or Luxembourg or any other required city
located outside the United States for those debt securities.
All monies we pay to a paying agent for the payment of principal of, and
any premium or interest on, any debt security or coupon that remains unclaimed
at the end of two years after becoming due and payable will be repaid to us.
After that time, the holder of the debt security or coupon will look only to us
for payments out of those repaid amounts.
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GLOBAL SECURITIES
The debt securities of a series may be issued in whole or in part in the
form of one or more global certificates that we will deposit with a depository
identified in the applicable prospectus supplement. Global securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Unless and until it is exchanged in whole or in part for the individual
debt securities it represents, a global security may not be transferred except
as a whole:
- by the applicable depositary to a nominee of the depository;
- by any nominee to the depository itself or another nominee; or
- by the depositary or any nominee to a successor depository or any nominee
of the successor.
To the extent not described below and under the heading "Book-Entry
Securities," we will describe the terms of the depository arrangement with
respect to a series of debt securities in the applicable prospectus supplement.
We anticipate that the following provisions will generally apply to depository
arrangements.
As long as the depository for a global security, or its nominee, is the
registered owner of that global security, the depository or nominee will be
considered the sole owner or holder of the debt securities represented by the
global security for all purposes under the applicable indenture. Except as
provided under "Book-Entry Securities" or in any applicable prospectus
supplement, owners of beneficial interests in a global security:
- will not be entitled to have any of the underlying debt securities
registered in their names;
- will not receive or be entitled to receive physical delivery of any of
the underlying debt securities in definitive form; and
- will not be considered the owners or holders under the indenture relating
to those debt securities.
The laws of some states require that certain purchasers of securities take
physical delivery of securities in definitive form. These laws may impair your
ability to transfer beneficial interests in a global security.
Payments of principal of, and any premium and interest on, individual debt
securities represented by a global security registered in the name of a
depository or its nominee will be made to the depository or its nominee as the
registered owner of the global security representing such debt securities.
Neither we, the trustee, any paying agent nor the registrar for the debt
securities will be responsible for any aspect of the records relating to or
payments made by the depository or any participants on account of beneficial
interests of the global security.
For a description of the depository arrangements for global securities held
by The Depository Trust Company, see "Book-Entry Securities."
THE SENIOR INDENTURE LIMITS OUR ABILITY TO INCUR LIENS
Unless we specify otherwise in the applicable prospectus supplement, the
senior indenture provides that neither we nor any of our subsidiaries may issue,
assume or guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed that are secured by a mortgage, lien, pledge,
security interest or other encumbrance -- defined in the indenture as
"liens" -- upon any of our property unless we provide that any and all senior
debt
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securities then outstanding shall be secured by a lien equally and ratably with
any and all other obligations by the lien. The restrictions on liens will not,
however, apply to:
- liens existing on the date of the senior indenture or provided for under
the terms of agreements existing on the date thereof;
- liens securing all or part of the cost of exploring, producing,
gathering, processing, marketing, drilling or developing any of our or
our subsidiaries' properties, or securing indebtedness incurred to
provide funds therefor or indebtedness incurred to finance all or part of
the cost of acquiring, constructing, altering, improving or repairing any
such property or assets, or securing indebtedness incurred to provide
funds therefor;
- liens securing only indebtedness owed by one of our subsidiaries to us
and/or to one or more of our other subsidiaries;
- liens on the property of any corporation or other entity existing at the
time it becomes our subsidiary;
- liens on any property to secure indebtedness incurred in connection with
the construction, installation or financing of pollution control or
abatement facilities or other forms of industrial revenue bond financing
or indebtedness issued or guaranteed by the United States, 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 Corp. and the
Multilateral Investment Guarantee Agency;
- any extension, renewal or replacement or successive extensions, renewals
or replacements of any lien referred to in the foregoing clauses that
existed on the date of the senior indenture;
- certain other liens incurred in the ordinary course of business; or
- liens which secure "limited recourse indebtedness," as defined in the
senior indenture.
In addition, the following types of transactions, among others, shall not
be deemed to create indebtedness secured by liens:
- the sale or other transfer of crude oil, natural gas or other petroleum
hydrocarbons in place for a period of time until, or in an amount such
that, the transferee will receive as a result of the transfer a specified
amount of money or of such crude oil, natural gas or other petroleum
hydrocarbons;
- the sale or other transfer of any other interest in property of the
character commonly referred to as a production payment, overriding
royalty, forward sale or similar interest; and
- liens required by any contract or statute in order to permit us or one of
our subsidiaries to perform any contract or subcontract made with or at
the request of the U.S. government or any foreign government or
international finance agency, any state or any department thereof, or any
agency or instrumentality of either, or to secure partial, progress,
advance or other payments to us or one of our subsidiaries by any of
these entities pursuant to the provisions of any contract or statute.
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THE SENIOR INDENTURE LIMITS OUR ABILITY TO ENGAGE IN SALE/LEASEBACK TRANSACTIONS
Unless we specify otherwise in the applicable prospectus supplement, the
senior debt indenture provides that neither we nor any of our subsidiaries will
enter into any arrangement with any person, other than us or one of our
subsidiaries, to lease any property to ourselves or a subsidiary of ours for
more than three years. For the restriction to apply, we or one of our
subsidiaries must sell or plan to sell the property to the person leasing it to
us or our subsidiary or to another person to which funds have been or are to be
advanced on the security of the leased property. The limitation does not apply
where:
- either we or our subsidiary would be entitled to create debt secured by a
lien on the property to be leased in a principal amount equal to or
exceeding the value of that sale/leaseback transaction;
- since the date of the senior indenture and within a period commencing six
months prior to the consummation of that arrangement and ending six
months after the consummation of the arrangement, we have or our
subsidiary has expended for any property an amount up to the net proceeds
of that arrangement, including amounts expended for the acquisition,
exploration, drilling or development thereof, and for additions,
alterations, improvements and repairs to the property, and we designate
such amount as a credit against that arrangement, with any of that amount
not being so designated to be applied as set forth in the next item; or
- during or immediately after the expiration of the 12 months after the
effective date of that transaction, we apply to the voluntary redemption,
defeasance or retirement of the senior debt securities and/or other
senior indebtedness, as defined in the senior indenture, an amount equal
to the greater of the net proceeds of the sale or transfer of the
property leased in that transaction or the fair value of 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 we utilize as set
forth in the prior item; the amount will be reduced by the principal
amount of senior indebtedness we voluntarily retire within that 12-month
period.
EACH INDENTURE INCLUDES EVENTS OF DEFAULT
Unless otherwise specified in the applicable prospectus supplement, any one
of the following events will constitute an "event of default" under each
indenture with respect to the debt securities of any series issued under that
indenture:
- if we fail to pay any interest on any debt security of that series when
due, and the failure continues for 30 days;
- if we fail to pay principal of or any premium on the debt securities of
that series when due and payable, either at maturity or otherwise;
- if we fail to perform or we breach any of our other covenants or
warranties in the applicable indenture or in the debt securities of that
series -- other than a covenant or warranty included in the applicable
indenture solely for the benefit of a series of securities other than the
debt securities of that series -- and that breach of failure continues
for 60 days after written notice as provided in the applicable indenture;
- certain events of bankruptcy, insolvency or reorganization involving us
or any of our subsidiaries; and
- any other event of default provided with respect to the debt securities
of that series.
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Unless otherwise specified in the applicable prospectus supplement, either
of the following two events will also constitute an "event of default" under the
senior indenture with respect to any senior debt securities:
- if any of our or any of our subsidiaries' indebtedness, as defined in the
senior indenture, in excess of an aggregate of $25,000,000 in principal
amount is accelerated under any event of default as defined in any
mortgage, indenture or instrument and the acceleration has not been
rescinded or annulled within 30 days after written notice as provided in
the senior indenture has been given specifying such event of default and
requiring us to cause that acceleration to be rescinded or annulled; or
- if we or any of our subsidiaries fail to pay, bond or otherwise discharge
within 60 days of entry, a judgment, court order or uninsured monetary
damage award against us in excess of an aggregate of $25,000,000 which is
not stayed on appeal or otherwise being appropriately contested in good
faith.
If an event of default with respect to the debt securities of any series,
other than an event of default described in the item above pertaining to certain
events of bankruptcy, insolvency or reorganization, occurs and is continuing,
either the trustee or the holders of at least 25% in aggregate principal amount
of the outstanding debt securities of that series may declare the principal
amount of the debt securities of that series 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 applicable
indenture, the holders of a majority in aggregate principal amount of the debt
securities of that series may, under certain circumstances, rescind and annul
such acceleration. If an event of default occurs pertaining to certain events of
bankruptcy, insolvency or reorganization, the principal amount and accrued
interest -- or a lesser amount as provided for in the debt securities of that
series -- shall be immediately due and payable without any declaration or other
act by the trustee or any holder.
Within 90 days after the occurrence of any event of default under an
indenture with respect to the debt securities of any series issued under that
indenture, the trustee must transmit notice of the event of default to the
holders of the debt securities of that series unless the event of default has
been cured or waived. The trustee may withhold the notice, however, except in
the case of a payment default, if and so long as the board of directors, the
executive committee or a trust committee of directors or responsible officers of
the trustee has in good faith determined that the withholding of the notice is
in the interest of the holders of debt securities of that series.
If an event of default occurs and is continuing with respect to the debt
securities of any series, the trustee may in its discretion proceed to protect
and enforce its rights and the rights of the holders of debt securities of that
series by all appropriate judicial proceedings.
Subject to the duty of the trustee during any default to act with the
required standard of care, the trustee is under no obligation to exercise any of
its rights or powers under an indenture at the request or direction of any of
the holders of debt securities issued under that indenture, unless the holders
offer the trustee reasonable indemnity. Subject to indemnifying the trustee, and
subject to applicable law and certain other provisions of each indenture, the
holders of a majority in aggregate principal amount of the outstanding debt
securities of a series issued under that indenture may direct the time, method
and place of conducting any proceeding for any remedy available to the trustee,
or exercising any trust or power conferred on the trustee, with respect to the
debt securities of that series.
WE ARE OBLIGATED TO PURCHASE DEBT SECURITIES UPON A CHANGE IN CONTROL
If a change in control, as defined in each indenture, occurs, we must mail
within 15 days a written notice regarding the change in control to the trustee
and to every holder of the debt
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securities of each series issued under that indenture. The notice must also be
published at least once in an authorized newspaper, as defined in each
indenture, and must state:
- the event causing the change in control and the date of the event;
- the date by which notice of the change in control is required by the
applicable indenture to be given;
- the date, 35 business days after the occurrence of the change in control,
by which we must purchase debt securities we are obligated to purchase
pursuant to the selling holder's exercise of rights on change in control;
- the price we must pay for the debt securities we are obligated to
purchase;
- the name and address of the trustee;
- the procedure for surrendering debt securities to the trustee or other
designated office or agent for payment;
- a statement of our obligation to make prompt payment on proper surrender
of the debt securities;
- the procedure for holders' exercise of rights of sale of the debt
securities; and
- the procedures by which a holder may withdraw such a notice after it is
given.
After we give this notice we will be obligated, at the election of each
holder, to purchase the applicable debt securities. Under each indenture, a
change in control is deemed to have occurred when:
- any event requiring the filing of any report under or in response to
Schedule 13D or 14D-1 pursuant to the Securities Exchange Act of 1934
disclosing beneficial ownership of either 50% or more of our common stock
then outstanding or 50% or more of the voting power of our voting stock
then outstanding;
- the completion of any sale, transfer, lease, or conveyance of our
properties and assets substantially as an entirety to any person or
persons that is not our subsidiary, as those terms are defined in each
indenture; or
- the completion of a consolidation or merger of Apache with or into any
other person or entity in a transaction in which either we are not the
sole surviving corporation or our common stock existing before the
transaction is converted into cash, securities or other property and in
which those exchanging our common stock do not, as a result of the
transaction, receive either 75% or more of the survivor's common stock or
75% or more of the voting power of the survivor's voting stock.
We will not purchase any debt securities if there has occurred and is
continuing an event of default under either indenture, other than default in
payment of the purchase price payable for the debt securities upon change in
control. In connection with any purchase of debt securities after a change in
control, we will comply with all federal and state securities laws, including,
specifically, Rule 13e-4, if applicable, of the Securities Exchange Act, and any
related Schedule 13E-4 required to be submitted under that rule.
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DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
We may discharge certain obligations to holders of any series of debt
securities that have not already been delivered to the trustee for cancellation
and that:
- have become due and payable;
- will become due and payable within one year; or
- are scheduled for redemption within one year.
To discharge the obligations with respect to a series of debt securities, we
must deposit with the trustee, in trust, an amount of funds in U.S. dollars or
in the foreign currency in which those debt securities are payable sufficient to
pay the entire amount of principal of, and any premium or interest on, those
debt securities to the date of the deposit if those debt securities have become
due and payable or to the maturity of the debt securities, as the case may be.
Unless we specify otherwise in the applicable prospectus supplement, we may
elect
- to defease and be discharged from any and all obligations with respect to
those debt securities, which we refer to as "legal defeasance"; or
- with respect to any debt securities, to be released from our covenant
obligations, as may be provided for under Section 301 of either
indenture, which we refer to as "covenant defeasance"; or,
- with respect to any senior debt securities, to be released from our
obligations under the covenants described above in "The Senior Indenture
Limits Our Ability to Incur Liens" and "The Senior Indenture Limits Our
Ability to Engage in Sale/Leaseback Transactions," which we also refer to
as "covenant defeasance."
In the case of legal defeasance we will still retain some obligations in
respect of the debt securities, including our obligations:
- to pay additional amounts, if any, upon the occurrence of certain events
of taxation, assessment or governmental charge with respect to payments
on the debt securities;
- to register the transfer or exchange of the debt securities;
- to replace temporary or mutilated, destroyed, lost or stolen debt
securities; and
- to maintain an office or agency with respect to the debt securities and
to hold monies for payment in trust.
After a covenant defeasance, any omission to comply with the obligations or
covenants that have been defeased shall not constitute a default or an event of
default with respect to the debt securities.
To elect either legal defeasance or covenant defeasance we must deposit
with the trustee, in trust, an amount, in U.S. dollars or in the foreign
currency in which the relevant debt securities are payable at stated maturity,
or in 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 any premium and interest on those debt securities on their
scheduled due dates.
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In addition, we can only elect legal defeasance or covenant defeasance if,
among other things:
- the applicable defeasance does not result in a breach or violation of, or
constitute a default under, the applicable indenture or any other
material agreement or instrument to which we are a party or by which we
are bound;
- no default or event of default with respect to the debt securities to be
defeased shall have occurred and be continuing on the date of the
establishment of the trust and, with respect to legal defeasance only, at
any time during the period ending on the 91st day after the date of the
establishment of the trust; and
- we have delivered to the trustee an opinion of counsel to the effect that
the holders of the debt securities will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of the defeasance
and will be subject to U.S. federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if the
defeasance had not occurred, and the opinion of counsel, in the case of
legal defeasance, must refer to and be based upon a letter ruling of the
Internal Revenue Service received by us, a Revenue Ruling published by
the Internal Revenue Service or a change in applicable U.S. federal
income tax law occurring after the date of the applicable indenture.
Each indenture deems a foreign currency to be any currency, currency unit
or composite currency issued by the government of one or more countries other
than the United States or by any recognized confederation or association of
governments.
Each indenture defines government obligations as securities which are not
callable or redeemable at the option of the issuer or issuers and are:
- direct obligations of the United States or the government or the
governments in the confederation which issued the foreign currency in
which the debt securities of a particular series are payable, for the
payment of which its full faith and credit is pledged; or
- obligations of a person or entity controlled or supervised by and acting
as an agency or instrumentality of the United States or the government or
governments which issued the foreign currency in which the debt
securities of a particular series are payable, the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States or that other government or governments.
Government obligations also include a depositary receipt issued by a bank or
trust company as custodian with respect to any government obligation described
above or a specific payment of interest on or principal of or any other amount
with respect to any government obligation held by that custodian for the account
of the holder of such depositary receipt, as long as, except as required by law,
that custodian is not authorized to make any deduction from the amount payable
to the holder of the depositary receipt from any amount received by the
custodian with respect to the government obligation or the specific payment of
interest on or principal of or any other amount with respect to the government
obligation evidenced by the depositary receipt.
Unless otherwise specified in the applicable prospectus supplement, if,
after we have deposited funds and/or government obligations to effect legal
defeasance or covenant defeasance with respect to debt securities of any series,
either:
- the holder of a debt security of that series is entitled to, and does,
elect to receive payment in a currency other than that in which such
deposit has been made in respect of that debt security; or
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- a conversion event, as defined below, occurs in respect of the foreign
currency in which the deposit has been made,
the indebtedness represented by that debt security shall be deemed to have been,
and will be, fully discharged and satisfied through the payment of the principal
of, and any premium and interest on, that debt security as that debt security
becomes due out of the proceeds yielded by converting the amount or other
properties so deposited in respect of that debt security into the currency in
which that debt security becomes payable as a result of the election or
conversion event based on:
- in the case of payments made pursuant to the first of the two items in
the list above, the applicable market exchange rate for the currency in
effect on the second business day prior to the date of the payment; or
- 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.
Each indenture defines a "conversion event" as the cessation of use of:
- a foreign currency other than the ECU or euro both by the government of
the country or the confederation which issued such foreign currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community;
- the ECU or euro both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Monetary System; or
- any currency unit or composite currency other than the ECU or euro for
the purposes for which it was established.
Unless otherwise provided in the applicable prospectus supplement, all payments
of principal of, and any premium and interest on, any debt security that are
payable in a foreign currency that ceases to be used by the government or
confederation of issuance shall be made in U.S. dollars.
If we effect a covenant defeasance with respect to any debt securities and
the debt securities are declared due and payable because of the occurrence of
any event of default other than an event of default with respect to which there
has been covenant defeasance, the amount in the foreign currency in which the
debt securities are payable, and government obligations on deposit with the
trustee, will be sufficient to pay amounts due on the debt securities at the
time of the stated maturity but may not be sufficient to pay amounts due on the
debt securities at the time of the acceleration resulting from the event of
default. However, we would remain liable for payment of the amounts due at the
time of acceleration.
The applicable prospectus supplement may further describe the provisions,
if any, permitting defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the debt
securities of or within a particular series.
Under each indenture, we are required to furnish to the trustee annually a
statement as to our performance of certain of our obligations under the
indenture and as to any default in such performance. We are also required to
deliver to the trustee, within five days after occurrence thereof, written
notice of any event which after notice or lapse of time or both would constitute
an event of default.
MODIFICATION AND WAIVER
We and the trustee may, without the consent of holders, modify provisions
of each indenture for certain purposes, including, among other things, curing
ambiguities and maintaining
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the qualification of the applicable indenture under the Trust Indenture Act. We
and the trustee may modify certain other provisions of each indenture with the
consent of the holders of not less than two-thirds, in the case of the senior
indenture, or a majority, in the case of the subordinate indenture, in aggregate
principal amount of the debt securities of each series issued under that
indenture affected by the modification. However, the provisions of either
indenture may not be modified without the consent of the holder of each debt
security affected thereby if the modification would:
- change the stated maturity or any installment of the principal of, or any
premium or interest on, or any installment of principal, or any
additional amounts with respect to, any debt security issued under that
indenture;
- reduce the principal amount of, or premium or interest on, or any
additional amounts with respect to, any debt security issued under that
indenture;
- change the coin or currency in which any debt security issued under that
indenture or any premium or any interest on that debt security or any
additional amounts with respect to that debt security is payable;
- if the debt securities are convertible or exchangeable, modify the
conversion or exchange provision in a manner adverse to holders of that
debt security;
- in the case of a subordinated debt security, modify any of the
subordination provisions in a manner adverse to holders of that debt
security;
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity of any debt securities issued under that
indenture or, in the case of redemption, exchange or conversion, if
applicable, on or after the redemption, exchange or conversion date or,
in the case of repayment at the option of any holder, if applicable, on
or after the date for repayment or in the case of a change in control,
after the change in control purchase date;
- reduce the percentage and principal amount of the outstanding debt
securities, the consent of whose holders is required under that indenture
in order to take certain actions;
- change any of our obligations to maintain an office or agency in the
places and for the purposes required by that indenture; or
- modify any of the above provisions.
The holders of at least a majority in aggregate principal amount of debt
securities of any series issued under one of the indentures may, on behalf of
the holders of all debt securities of that series, waive our compliance with
certain restrictive provisions of that indenture. The holders of not less than a
majority in aggregate principal amount of debt securities of any series issued
under one of the indentures may, on behalf of all holders of debt securities of
that series, waive any past default and its consequences under that indenture
with respect to the debt securities of that series, except:
- a payment default with respect to debt securities of that series; or
- a default of a covenant or provision of that indenture that cannot be
modified or amended without the consent of the holder of the debt
securities of that series.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may, without the consent of the holders of the debt securities,
consolidate or merge with or into, or convey, transfer or lease our properties
and assets substantially as an entirety to, any person that is a corporation,
limited liability company, partnership or trust organized and validly existing
under the laws of any domestic jurisdiction. We may also permit any of those
persons to
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consolidate with or merge into us or convey, transfer or lease its properties
and assets substantially as an entirety to us, as long as:
- any successor person assumes our obligations on the debt securities;
- no event of default under the applicable indenture has occurred and is
continuing after giving effect to the transaction;
- no event which, after notice or lapse of time or both, would become an
event of default under the applicable indenture has occurred and is
continuing after giving effect to the transaction; and
- certain other conditions are met.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
The following applies only in the event that debt securities are held by an
Apache Trust.
To the extent that any action under any debt securities held by an Apache
Trust is entitled to be taken by the holders of at least a specified percentage
of those debt securities, and unless otherwise specified in the applicable
prospectus supplement, holders of the trust preferred securities issued by that
Apache Trust may take action if the action is not taken by the property trustee
of that Apache Trust. Notwithstanding the foregoing, if an event of default
under those debt securities has occurred and is continuing and is attributable
either to:
- the failure of Apache to pay the principal of, or any premium or interest
on, those debt securities on the due date; or
- the failure by Apache to deliver the required securities or other
property upon an appropriate conversion or exchange election, if any,
and an event of default has occurred and is continuing under the applicable
trust agreement, a holder of the related trust preferred securities may
institute a direct action.
A "direct action" is a legal proceeding directly against Apache for
enforcement of payment to the holder of trust preferred securities issued by an
Apache Trust of the principal of or any premium or interest on the debt
securities held by that trust having a principal amount equal to the liquidation
amount of those trust preferred securities held by that holder or for
enforcement of any conversion or exchange rights, as the case may be. Apache may
not amend an indenture to remove this right to bring a direct action without the
prior written consent of the holders of all of the trust preferred securities
outstanding that have an interest in the related debt securities. If the right
to bring a direct action is removed, the Apache Trusts may become subject to the
reporting obligations under the Securities Exchange Act. Notwithstanding any
payments made to a holder of trust preferred securities by Apache in connection
with a direct action, Apache will remain obligated to pay the principal of, and
any premium and interest on, the related debt securities, and Apache will be
subrogated to the rights of the holders of those trust preferred securities with
respect to payments on the trust preferred securities to the extent of any
payments made by Apache to the holder in any direct action.
The holders of the trust preferred securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the related debt securities unless an event of
default has occurred and is continuing under the applicable trust agreement. See
"Description of Trust Preferred Securities -- Events of Default; Notice" below.
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DESCRIPTION OF TRUST PREFERRED SECURITIES
Each Apache Trust will issue under its trust agreement only one series of
trust preferred securities, which will represent beneficial interests in that
Apache Trust. Each Apache Trust will qualify its trust agreement under the Trust
Indenture Act. Each trust agreement is subject to, and governed by, the Trust
Indenture Act. This summary of certain terms and provisions of the trust
preferred securities and the trust agreement does not purport to be complete and
is subject to, and is qualified in its entirety by reference to, all of the
provisions of the trust preferred securities and the trust agreement, including
the definitions of certain terms, and those made a part of the trust agreement
by the Trust Indenture Act. A form of trust agreement is, and the terms and
conditions of trust securities and forms thereof will be, filed as exhibits to
the registration statement that includes this prospectus.
Each Apache Trust will describe the specific terms of the trust preferred
securities it is offering in the applicable prospectus supplement, including:
- the designation, number, purchase price and liquidation amount, if any,
of the trust preferred securities;
- the distribution rate, or method of calculation of the distribution rate,
for the trust preferred securities and, if applicable, any deferral
provisions;
- whether the distributions on the trust preferred securities will be
cumulative and, if so, the dates from which and upon which distributions
will accumulate and be payable and the record dates;
- if other than U.S. dollars, the currency in which cash payments are
payable;
- the liquidation amount per trust preferred security which will be paid
out of the assets of that Apache Trust to the holders upon voluntary or
involuntary dissolution and liquidation of that trust;
- the obligation or right, if any, of that Apache Trust to purchase or
redeem its trust preferred securities, whether pursuant to a sinking fund
or otherwise, and the price or prices at which, the date or dates on
which or period or periods within which and the terms and conditions upon
which, it will or may purchase or redeem, in whole or in part, the trust
preferred securities pursuant to its obligation or right to purchase or
redeem;
- the terms and conditions, if any, upon which the trust preferred
securities may be converted or exchanged, in addition to the
circumstances described herein, into other securities or property, or a
combination of the foregoing;
- the obligation or right, if any, of Apache, that Apache Trust or any
other party to liquidate that Apache Trust and any terms and conditions
of such liquidation;
- the voting rights, if any, of the holders;
- if applicable, any securities exchange upon which the trust preferred
securities will be listed;
- if applicable, a description of any remarketing, auction or other similar
arrangements;
- whether the trust preferred securities are issuable in book-entry only
form and, if so, the identity of the depositary and disclosure relating
to the depositary arrangements; and
- any other rights, preferences, privileges, limitations or restrictions of
the trust preferred securities consistent with the trust agreement or
with applicable law, which may differ from those described herein.
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Each Apache Trust will also describe certain material United States federal
income tax considerations applicable to any offering of trust preferred
securities in the applicable prospectus supplement.
If indicated in the applicable prospectus supplement, the terms of an
Apache Trust may differ from the terms summarized below.
GENERAL
The trust preferred securities of each Apache Trust will rank equally, and
payments will be made on the trust preferred securities proportionately, with
the trust common securities of each Apache Trust except as described under
"-- Subordination of Trust Common Securities." Apache Trust will use the
proceeds from the sale of trust preferred securities and trust common securities
to purchase an aggregate principal amount of debt securities of Apache equal to
the aggregate liquidation amount of those trust preferred securities and trust
common securities. The property trustee of each Apache Trust will hold legal
title to the debt securities for the benefit of the holders of the related trust
securities. In addition, Apache will execute a guarantee for the benefit of the
holders of the related trust preferred securities. The guarantees will not
guarantee payment of distributions or amounts payable or securities or other
property deliverable, if any, on redemption, repayment, conversion or exchange
of the trust preferred securities or liquidation of an Apache Trust when the
trust does not have funds or other property legally available for payment or
delivery. See "Description of Trust Preferred Securities Guarantees."
The revenue of an Apache Trust available for distribution to holders of its
trust preferred securities will be limited to payments under the related debt
securities and any other assets held by that Apache Trust. If Apache fails to
make a required payment in respect of those debt securities or any other assets,
that Apache Trust will not have sufficient funds to make the related payments,
including distributions, in respect of its trust preferred securities.
SUBORDINATION OF TRUST COMMON SECURITIES
Each Apache Trust will pay distributions on, and the applicable redemption
price of, and any other amounts payable or property deliverable under, the trust
securities it issues equally among its trust preferred securities and its trust
common securities based on their respective liquidation amounts; provided,
however, that if on any distribution date, redemption date, repayment date or
conversion or exchange date, or upon liquidation or an event of default under
the debt securities held by that Apache Trust or any other event of default
under the trust agreement has occurred and is continuing, that Apache Trust will
not pay any distribution on, or applicable redemption or repayment price of, or
convert or exchange any of its trust common securities, and will not make any
other payment on account of the redemption, repayment, conversion, exchange,
liquidation or other acquisition of the trust common securities, unless payment
in full in cash of all accumulated distributions on all of the outstanding trust
preferred securities of that Apache Trust for all distribution periods
terminating on or before the redemption, repayment, conversion, exchange,
liquidation or other acquisition, and, in the case of payment of the applicable
redemption or repayment price, the full amount of the redemption or repayment
price, will have been made or provided for and, in the case of conversion or
exchange, that the trust preferred securities have been converted or exchanged
in full and other amounts payable have been paid. The property trustee will
apply all available funds first to the payment in full in cash of all
distributions on, or the applicable redemption price of, the trust preferred
securities issued by that Apache Trust then due and payable.
Until any event of default under the trust agreement for an Apache Trust
has been cured, waived or otherwise eliminated, the property trustee will act
solely on behalf of the holders of the trust preferred securities of that Apache
Trust and not on behalf of Apache as the direct or indirect trust common
securities owner, and only the holders of the trust preferred securities
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issued by that Apache Trust will have the right to direct the property trustee
to act on their behalf.
EVENTS OF DEFAULT; NOTICE
The occurrence of an event of default under the debt securities and any
other assets held by an Apache Trust will constitute an event of default under
the trust agreement for that Apache Trust. Within 90 business days after the
occurrence of an event of default actually known to the property trustee, the
property trustee will transmit notice of that event of default to the holders of
the trust preferred securities of that Apache Trust, the administrative trustees
and Apache, as sponsor, unless the event of default shall have been cured or
waived.
For a discussion of the limited circumstances in which holders of trust
preferred securities may bring a direct action against Apache under the debt
securities, see "Description Of Debt Securities -- Enforcement of Certain Rights
by Holders of Trust Preferred Securities." The applicable prospectus supplement
may describe additional events of default under the trust agreement.
REMOVAL OF TRUSTEES
Unless an event of default under the debt securities held by an Apache
Trust has occurred and is continuing, Apache, as the direct or indirect owner of
trust common securities of that Apache Trust, may remove the property trustee,
the Delaware trustee and the administrative trustees at any time. If an event of
default under the debt securities held by an Apache Trust has occurred and is
continuing, only the holders of a majority in liquidation amount of the
outstanding trust preferred securities of that Apache Trust may remove and
replace the property trustee and the Delaware trustee for that Apache Trust. In
no event will the holders of the trust preferred securities have the right to
vote to appoint, remove or replace the administrative trustees, which voting
rights are vested exclusively in Apache as the direct or indirect trust common
securities owner. No resignation or removal of a property or Delaware trustee,
and no appointment of a successor to that trustee, will be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the applicable trust agreement.
MERGER OR CONSOLIDATION OF PROPERTY OR DELAWARE TRUSTEES
Any person into which the property trustee or the Delaware trustee may be
merged or converted or with which it may be consolidated, or any person
resulting from any merger, conversion or consolidation to which the property
trustee or the Delaware trustee will be a party, or any person succeeding to all
or substantially all the corporate trust business of the property trustee or the
Delaware trustee, will be the successor of the property trustee or the Delaware
trustee under the trust agreement, provided that the person will be otherwise
qualified and eligible.
MERGERS, CONVERSIONS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF AN APACHE
TRUST
An Apache Trust may not merge with or into, convert into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety, to any other person,
except as described below or as otherwise described in the applicable prospectus
supplement. An Apache Trust may, at the request of Apache, as sponsor, with the
consent of the administrative trustees but without the consent of the holders of
its trust preferred securities, the Delaware trustee or the property trustee,
merge with or into, convert
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into, consolidate, amalgamate, or be replaced by a trust organized as such under
the laws of any state of the United States; provided, that:
- the successor entity expressly assumes all of the obligations of that
Apache Trust under any agreement to which the trust is a party and
either:
- expressly assumes all of the obligations of that Apache Trust with
respect to the trust securities of that Apache Trust, or
- substitutes for the trust securities of that Apache Trust other
securities having substantially the same terms as those trust
securities, so long as the successor trust securities rank the same as
the trust securities rank with respect to distributions and payments
upon liquidation, redemption and otherwise;
- the successor entity has a trustee possessing substantially the same
powers and duties as the property trustee;
- the successor securities are listed, or any successor securities will be
listed upon notification of issuance, if applicable, on each national
securities exchange or other organization on which the trust securities
of that Apache Trust are then listed, if any;
- the merger, conversion, consolidation, amalgamation or replacement does
not cause the trust securities, including any successor securities, of
that Apache Trust to be downgraded or placed under surveillance or review
by any nationally recognized statistical rating organization;
- the merger, conversion, consolidation, amalgamation or replacement does
not adversely affect the rights, preferences and privileges of the
holders of the trust securities, including any successor securities, of
that Apache Trust in any material respect;
- the successor entity has a purpose substantially identical to that of
that Apache Trust;
- prior to the merger, conversion, consolidation, amalgamation or
replacement, Apache has received an opinion from nationally recognized
independent counsel to that Apache Trust experienced in these matters to
the effect that
- the merger, conversion, consolidation, amalgamation or replacement
does not adversely affect the rights, preferences and privileges of
the holders of the trust securities, including any successor
securities, of that Apache Trust in any material respect,
- following the merger, conversion, consolidation, amalgamation or
replacement, neither that Apache Trust nor the successor entity, if
any, will be required to register as an investment company under the
Investment Company Act of 1940, as amended, and
- following the merger, conversion, consolidation, amalgamation or
replacement, that Apache Trust or the successor entity, as the case
may be, will continue to be classified as a grantor trust for United
States federal income tax purposes;
- Apache or any permitted successor or assignee directly or indirectly owns
all of the common securities of the successor entity and guarantees the
obligations of the successor entity under the successor securities at
least to the extent provided by the applicable guarantee; and
- the property trustee has received our officer's certificate and an
opinion of counsel, each to the effect that all conditions precedent to
the transaction as set forth in the trust agreement have been satisfied.
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VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided under "-- Mergers, Conversions, Consolidations,
Amalgamations or Replacements of an Apache Trust" and "Description of Trust
Preferred Securities Guarantees -- Amendments and Assignment" and as otherwise
required by law and the trust agreement or specified in the applicable
prospectus supplement, the holders of trust preferred securities will have no
voting rights.
Apache, the property trustee, the Delaware trustee and the administrative
trustees may amend from time to time the trust agreement for an Apache Trust,
without the consent of the holders of the trust securities of that Apache Trust,
- to cure any ambiguity, or correct or supplement any provisions in the
trust agreement that may be defective or inconsistent with any other
provision,
- to add to the covenants, restrictions or obligations of the sponsor,
- to conform to any change in the Investment Company Act or Trust Indenture
Act or the rules promulgated thereunder, or any written change in
interpretation of such acts or rules by any governmental authority, or
- to cause that Apache Trust to continue to be classified for United States
federal income tax purposes as a grantor trust;
provided, however, that in the case of the first bullet point above, the
modification will not adversely affect in any material respect the interests of
the holders of the trust securities issued by that Apache Trust.
Without the consent of each holder of trust securities issued by an Apache
Trust, the trust agreement for that Apache Trust may not be amended to:
- change the distribution rate, or manner of calculation of the
distribution rate, amount, timing or currency or otherwise adversely
affect the method of any required payment;
- change its purpose;
- authorize the issuance of any additional beneficial interests;
- change the conversion, exchange or redemption provisions, if any;
- change the conditions precedent for Apache to elect to dissolve that
Apache Trust and distribute the debt securities held by that Apache Trust
to the holders of the trust securities, if applicable;
- change the liquidation, distribution or other provisions relating to the
distribution of amounts payable upon the dissolution and liquidation of
that Apache Trust;
- affect the limited liability of any holder of its trust securities; or
- restrict the right of a holder of its trust securities to institute suit
for the enforcement of any required distribution on or, if applicable,
after the due date therefor or for the conversion or exchange of the
trust securities in accordance with their terms.
So long as the property trustee holds any debt securities for an Apache
Trust, the property trustee, the Delaware trustee and the administrative
trustees for that Apache Trust will not:
- direct the time, method and place of conducting any proceeding for any
remedy available to the debt securities trustee, or execute any trust or
power conferred on the property trustee, with respect to those debt
securities;
- waive certain past defaults under the applicable indenture;
- exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of those debt securities; or
- consent to any amendment, modification or termination of the applicable
indenture or those debt securities, where consent is required.
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without, in each case, obtaining the prior approval of the holders of a majority
in liquidation amount of all outstanding trust preferred securities of that
Apache Trust; provided, however, that where a consent under the applicable
indenture would require the consent of each holder of those debt securities
affected thereby, the property trustee will not consent without the prior
approval of each holder of the trust preferred securities issued by that Apache
Trust. The property trustee, the Delaware trustee and the administrative
trustees may not revoke any action previously authorized or approved by a vote
of the holders of trust preferred securities except by subsequent vote of the
holders. The property trustee will notify each holder of trust preferred
securities of any notice of default with respect to the applicable debt
securities. In addition to obtaining approvals of holders of trust preferred
securities referred to above, prior to taking any of the foregoing actions, the
property trustee, the Delaware trustee and the administrative trustees will
obtain an opinion of counsel experienced in these matters to the effect that the
applicable Apache Trust will not be classified as other than a grantor trust for
United States federal income tax purposes on account of such action.
Any required approval of holders of trust preferred securities may be given
at a meeting of the holders convened for this purpose or by written consent
without prior notice. The property trustee will cause a notice of any meeting at
which holders of trust preferred securities are entitled to vote to be given to
each holder of record of trust preferred securities in the manner set forth in
the trust agreement.
Notwithstanding that holders of trust preferred securities are entitled to
vote or consent under any of the circumstances referred to above, any trust
preferred securities that are owned by Apache or any affiliate of Apache will,
for purposes of this vote or consent, be treated as if they were not
outstanding.
GLOBAL TRUST PREFERRED SECURITIES
Unless otherwise specified in the applicable prospectus supplement, trust
preferred securities will be represented by one or more global certificates
deposited with, or on behalf of, DTC, or other depository identified in the
prospectus supplement, or a nominee of DTC or other depository, in each case for
credit to an account of a participant in DTC or other depository. The identity
of the depository and the specific terms of the depositary arrangements with
respect to the trust preferred securities to be represented by one or more
global certificates to the extent not discussed under "Book-Entry Securities"
will be described in the applicable prospectus supplement. However, unless
otherwise specified in the applicable prospectus supplement, DTC will be the
depositary and the depository arrangements described with respect to the debt
securities will apply to those trust preferred securities as well, except all
references to Apache shall include Apache Trust I and Apache Trust II and all
references to the indentures will refer to the applicable trust agreement. See
"Description of Debt Securities -- Global Securities" and "Book-Entry
Securities."
PAYMENT AND PAYING AGENT
Payments in respect of any global certificate representing trust preferred
securities will be made to Cede & Co. as nominee of DTC or other applicable
depository or its nominee, which will credit the relevant accounts at DTC or
other depository on the applicable payment dates, while payments in respect of
trust preferred securities in certificated form will be made by check mailed to
the address of the holder entitled thereto as the address will appear on the
register. The paying agent will initially be the property trustee and any
co-paying agent chosen by the property trustee and acceptable to the
administrative trustees and Apache. The paying agent will be permitted to resign
as paying agent upon 30 days prior written notice to the property trustee, the
administrative trustees and Apache. In the event that the property trustee will
no longer be the paying agent, the administrative trustees will appoint a
successor, which will be a bank or trust company acceptable to the
administrative trustees and Apache, to act as paying agent.
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REGISTRAR AND TRANSFER AGENT
The property trustee will act as registrar and transfer agent for the trust
preferred securities.
Registration of transfers of trust preferred securities will be effected
without charge by or on behalf of an Apache Trust, upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. An Apache Trust will not be required to register or cause to be
registered the transfer of its trust preferred securities after they have been
converted, exchanged, redeemed, repaid or called for redemption or repayment.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee, other than during the occurrence and continuance of
an event of default under the trust agreement, will undertake to perform only
the duties that are specifically set forth in the trust agreement and, during
the continuance of that event of default, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or her
own affairs. Subject to the foregoing, the property trustee will not be under
any obligation to exercise any of the powers vested in it by the trust agreement
at the request of any holder of the related trust securities unless the holder
offers the property trustee reasonable indemnity against the costs, expenses and
liabilities that it might incur thereby.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate each Apache Trust in such a way that:
- that Apache Trust will not be deemed to be an investment company required
to be registered under the Investment Company Act;
- that Apache Trust will be classified as a grantor trust for United States
federal income tax purposes; and
- the debt securities held by that Apache Trust will be treated as
indebtedness of Apache for United States federal income tax purposes.
Apache and the administrative trustees are authorized to take any action, not
inconsistent with applicable law, the certificate of trust of each Apache Trust
or each trust agreement, that the administrative trustees determine in their
discretion to be necessary or desirable for those purposes, as long as that
action does not materially adversely affect the interests of the holders of the
related trust securities.
Holders of trust preferred securities will not have any preemptive or
similar rights.
DESCRIPTION OF TRUST PREFERRED SECURITIES GUARANTEES
Apache will execute and deliver a guarantee concurrently with the issuance
by an Apache Trust of its trust preferred securities for the benefit of the
holders from time to time of those trust preferred securities. That guarantee
will be held for those holders by a guarantee trustee. Apache will qualify each
of the guarantees as an indenture under the Trust Indenture Act. The guarantees
will be subject to, and governed by, the Trust Indenture Act. This summary of
certain terms and provisions of a guarantee does not purport to be complete and
is subject to, and qualified in its entirety by reference to, all of the
provisions of each guarantee, including the definitions of terms, and those made
a part of each guarantee by the Trust Indenture Act. A form of guarantee is
filed as an exhibit to the registration statement that includes this prospectus.
If
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indicated in the applicable prospectus supplement, the terms of a particular
guarantee may differ from the terms discussed below.
GENERAL
Apache will irrevocably agree to pay in full, to the extent set forth
herein, the guarantee payments to the holders of the related trust preferred
securities, as and when due, regardless of any defense, right of set-off or
counterclaim that an Apache Trust may have or assert. The following payments
constitute guarantee payments with respect to trust preferred securities and, to
the extent not paid by or on behalf of an Apache Trust, will be subject to the
applicable guarantee:
- any accrued and unpaid distributions required to be paid on the
applicable trust preferred securities, to the extent that an Apache Trust
has funds legally available therefor at such time;
- the applicable redemption or repayment price and all accrued and unpaid
distributions to the date of redemption or repayment with respect to the
applicable trust preferred securities called for redemption or repayment,
to the extent that an Apache Trust has funds legally available therefor
at such time; or
- upon a voluntary or involuntary dissolution and liquidation of the
applicable Apache Trust, other than in connection with the distribution
of the debt securities to holders of its trust preferred securities or
the redemption, repayment, conversion or exchange of its trust preferred
securities, if applicable, the lesser of
- the amounts due upon the dissolution and liquidation of that Apache
Trust, to the extent that it has funds legally available therefor at
the time, and
- the amount of assets of that Apache Trust remaining available for
distribution to holders of its trust preferred securities after
satisfaction of liabilities to its creditors as required by
applicable law.
Apache's obligation to make a guarantee payment may be satisfied by direct
payment of the required amounts by Apache to the holders of the applicable trust
preferred securities entitled to those payments or by causing the applicable
Apache Trust to pay those amounts to the holders.
If the trust preferred securities are exchangeable or convertible into
other securities, Apache will also irrevocably agree to cause the applicable
Apache Trust to deliver to holders of those trust preferred securities those
other securities in accordance with the applicable exchange or conversion
provisions.
Apache will, through the guarantee, the applicable trust agreement, the
related debt securities and the applicable indenture, taken together, fully,
irrevocably and unconditionally guarantee all of each Apache Trust's obligations
under its trust preferred securities. No single document standing alone or
operating in conjunction with fewer than all of the other documents constitutes
a guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of each
Apache Trust's obligations under its trust preferred securities.
RANKING
Unless otherwise specified in the applicable prospectus supplement, each
guarantee will constitute an unsecured obligation of Apache and will rank equal
to the debt securities held by the Apache Trust that issued the preferred trust
securities covered by the guarantee. Each trust agreement provides that each
holder of trust preferred securities, by acceptance of the applicable trust
preferred securities, agrees to the terms of the related guarantee, including
any subordination provisions.
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The guarantees will not limit the amount of secured or unsecured debt,
including indebtedness under the indentures, that may be incurred by Apache or
any of its subsidiaries.
GUARANTEE OF PAYMENT
Each guarantee will constitute a guarantee of payment and not of
collection. This means that the guaranteed party may institute a legal
proceeding directly against Apache to enforce its rights under a guarantee
without first instituting a legal proceeding against any other person or entity.
A guarantee will not be discharged except by payment of the related guarantee
payments in full to the extent not paid by the applicable Apache Trust or upon
distribution of the debt securities or other assets held by the Apache Trust to
the holders of the its trust preferred securities.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the related trust preferred securities, in which case
no approval will be required, a guarantee may not be amended without the prior
approval of the holders of a majority of the liquidation amount of the
outstanding trust preferred securities covered by that guarantee. The manner of
obtaining any approval will be as set forth under "Description Of Trust
Preferred Securities -- Voting Rights; Amendment of a Trust Agreement." All
guarantees and agreements contained in a guarantee will bind the successors,
assigns, receivers, trustees and representatives of Apache and will inure to the
benefit of the holders of the related trust preferred securities then
outstanding.
EVENTS OF DEFAULT
An event of default under a guarantee will occur upon the failure of Apache
to perform any of its payment or other obligations under that guarantee,
provided that, except with respect to a default in respect of any guarantee
payment or delivery of any securities upon conversion or exchange of the trust
securities, Apache has not cured the default 90 days from the date the guarantee
trustee obtains knowledge of the event of default. The holders of a majority in
liquidation amount of the trust preferred securities covered by a guarantee will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the guarantee trustee in respect of that guarantee
or to direct the exercise of any trust or power conferred upon the guarantee
trustee under that guarantee.
If the guarantee trustee fails to enforce a guarantee, any holder of the
related trust preferred securities may institute a legal proceeding directly
against Apache to enforce its rights under that guarantee without first
instituting a legal proceeding against the applicable Apache Trust, the
guarantee trustee or any other person or entity.
TERMINATION
A guarantee will terminate and be of no further force and effect upon full
payment of the applicable redemption or repayment price of the related trust
preferred securities, upon full payment of all amounts or delivery of all
securities or other property due upon the dissolution and liquidation of the
applicable Apache Trust or upon the conversion or exchange of all of the related
trust preferred securities. A guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the related trust
preferred securities must restore payment of any sums paid or other property
distributed under those trust preferred securities or the related guarantee.
GOVERNING LAW
The guarantees will be governed by and construed in accordance with the
laws of the State of New York.
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INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The guarantee trustee, other than during the occurrence and continuance of
a default by Apache in performance of a guarantee, will undertake to perform
only the duties that are specifically set forth in that guarantee and, during
the continuance of that default, must exercise the same degree of care and skill
as a prudent person would exercise or use in the conduct of his or her own
affairs. Subject to the foregoing, the guarantee trustee will not be under any
obligation to exercise any of the powers vested in it by a guarantee at the
request of any holder of the related trust preferred securities unless it is
offered reasonable indemnity against the costs, expenses and liabilities that it
might incur.
RIGHTS UPON DISSOLUTION
Unless the debt securities held by an Apache Trust are distributed to
holders of the related trust preferred securities, upon any voluntary or
involuntary dissolution and liquidation of that Apache Trust, after satisfaction
of the liabilities of its creditors as required by applicable law, the holders
of those trust securities will be entitled to receive, out of assets held by
that Apache Trust, the liquidation distribution in cash. Upon any voluntary or
involuntary liquidation or bankruptcy of Apache, the property trustee, as holder
of the debt securities, would be a creditor of Apache.
DESCRIPTION OF COMMON STOCK PURCHASE CONTRACTS AND UNITS
We may issue stock purchase contracts, representing contracts entitling or
obligating holders to purchase from Apache, and Apache to sell to the holders, a
specified number of shares of common stock at a future date or dates. The price
per share of common stock may be fixed at the time the contracts are issued or
may be determined by reference to a specific formula set forth in the contracts.
The common stock purchase contracts may be issued separately or as a part of
units, which are referred to in this prospectus as "common stock purchase
units," consisting of a common stock purchase contract and, as security for the
holder's obligations to purchase the common stock under the contracts, the
following:
- senior debt securities or subordinated debt securities of Apache;
- preferred stock of Apache;
- debt obligations of third parties, including U.S. Treasury securities;
- trust preferred securities of an Apache Trust
- any other security described in the applicable prospectus supplement; or
- any combination of the foregoing.
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The common stock purchase contracts may require Apache to make periodic
payments to the holders of the common stock purchase units or vice versa, and
such payments may be unsecured or prefunded on some basis. The common stock
purchase contracts may require holders to secure their obligations thereunder in
a specified manner, and in certain circumstances Apache may deliver newly issued
prepaid common stock purchase contracts, which are referred to as "prepaid
securities," upon release to a holder of any collateral securing such holder's
obligations under the original contract.
The applicable prospectus supplement will describe the terms of any common
stock purchase contracts or units and, if applicable, prepaid securities. The
description in the prospectus supplement will not purport to be complete and
will be qualified in its entirety by reference to the contracts, the collateral
arrangements and depositary arrangements, if applicable, relating to such
contracts or units and, if applicable, the prepaid securities and the document
pursuant to which such prepaid securities will be issued.
BOOK-ENTRY SECURITIES
Unless otherwise specified in the applicable prospectus supplement, we will
issue to investors securities, other than our common stock, in the form of one
or more book-entry certificates registered in the name of a depository or a
nominee of a depository. Unless otherwise specified in the applicable prospectus
supplement, the depository will be The Depository Trust Company, also referred
to as DTC. We have been informed by DTC that its nominee will be Cede & Co.
Accordingly, Cede is expected to be the initial registered holder of all
securities that are issued in book-entry form.
No person that acquires a beneficial interest in securities issued in
book-entry form will be entitled to receive a certificate representing those
securities, except as set forth in this prospectus or in the applicable
prospectus supplement. Unless and until definitive securities are issued under
the limited circumstances described below, all references to actions by holders
or beneficial owners of securities issued in book-entry form will refer to
actions taken by DTC upon instructions from its participants, and all references
to payments and notices to holders or beneficial owners will refer to payments
and notices to DTC or Cede, as the registered holder of such securities.
DTC has informed us that it is:
- a limited-purpose trust company organized under New York banking laws;
- a "banking organization" within the meaning of the New York banking laws;
- a member of the Federal Reserve System;
- a "clearing corporation" within the meaning of the New York Uniform
Commercial Code; and
- a "clearing agency" registered under the Securities Exchange Act.
DTC has also informed us that it was created to:
- hold securities for "participants"; and
- facilitate the computerized settlement of securities transactions among
participants through computerized electronic book-entry changes in
participants' accounts, thereby eliminating the need for the physical
movement of securities certificates.
Participants have accounts with DTC and include securities brokers and
dealers, banks, trust companies and clearing corporations. Indirect access to
the DTC system also is available to
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indirect participants such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
Persons that are not participants or indirect participants but desire to
buy, sell or otherwise transfer ownership of or interests in securities may do
so only through participants and indirect participants. Under the book-entry
system, beneficial owners may experience some delay in receiving payments, as
payments will be forwarded by our agent to Cede, as nominee for DTC. DTC will
forward these payments to its participants, which thereafter will forward them
to indirect participants or beneficial owners. Beneficial owners will not be
recognized by the applicable registrar, transfer agent, trustee or depositary as
registered holders of the securities entitled to the benefits of the
certificate, the indenture or any deposit agreement. Beneficial owners that are
not participants will be permitted to exercise their rights as an owner only
indirectly through participants and, if applicable, indirect participants.
Under the current rules and regulations affecting DTC, DTC will be required
to make book-entry transfers of securities among participants and to receive and
transmit payments to participants. Participants and indirect participants with
which beneficial owners of securities have accounts are also required by these
rules to make book-entry transfers and receive and transmit such payments on
behalf of their respective account holders.
Because DTC can act only on behalf of participants, who in turn act only on
behalf of other participants or indirect participants, and on behalf of certain
banks, trust companies and other persons approved by it, the ability of a
beneficial owner of securities issued in book-entry form to pledge those
securities to persons or entities that do not participate in the DTC system may
be limited due to the unavailability of physical certificates for the
securities.
DTC has advised us that it will take any action permitted to be taken by a
registered holder of any securities under the certificate, the indenture or any
deposit agreement only at the direction of one or more participants to whose
accounts with DTC the securities are credited.
According to DTC, the information with respect to DTC has been provided to
its participants and other members of the financial community for informational
purposes only and is not intended to serve as a representation, warranty, or
contract modification of any kind.
Unless otherwise specified in the applicable prospectus supplement, a
book-entry security will be exchangeable for definitive securities registered in
the names of persons other than DTC or its nominee only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for the book-entry security or DTC ceases to be a clearing agency
registered under the Securities Exchange Act at a time when DTC is
required to be so registered; or
- we execute and deliver to the applicable registrar, transfer agent,
trustee and/or depositary an order complying with the requirements of the
certificate, the indenture or any deposit agreement that the book-entry
security will be so exchangeable.
Any book-entry security that is exchangeable in accordance with the
preceding sentence will be exchangeable for securities registered in such names
as DTC directs.
If one of the events described in the immediately preceding paragraph
occurs, DTC is generally required to notify all participants of the availability
through DTC of definitive securities. Upon surrender by DTC of the book-entry
security representing the securities and delivery of instructions for
re-registration, the registrar, transfer agent, trustee or depositary, as the
case may be, will reissue the securities as definitive securities. After
reissuance of the securities, such persons will recognize the beneficial owners
of such definitive securities as registered holders of securities.
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Except as described above:
- a book-entry security may not be transferred except as a whole book-entry
security by or among DTC, a nominee of DTC and/or a successor depository
appointed by us; and
- DTC may not sell, assign or otherwise transfer any beneficial interest in
a book-entry security unless the beneficial interest is in an amount
equal to an authorized denomination for the securities evidenced by the
book-entry security.
None of Apache, the Apache Trusts, the trustees, any registrar and transfer
agent or any depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
book-entry security.
PLAN OF DISTRIBUTION
Apache and the Apache Trusts may sell the securities through agents,
underwriters or dealers, or directly to one or more purchasers without using
underwriters or agents.
Apache and the Apache Trusts may designate agents who agree to use their
reasonable efforts to solicit purchases for the period of their appointment or
to sell securities on a continuing basis.
If Apache and/or an Apache Trust use underwriters for a sale of securities,
the underwriters will acquire the securities for their own account. The
underwriters may resell the securities in one or more transactions, including
negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. The obligations of the underwriters to purchase
the securities will be subject to the conditions set forth in the applicable
underwriting agreement. The underwriters will be obligated to purchase all the
securities offered if any of those securities are purchased. Any initial public
offering price and any discounts or concessions allowed or re-allowed or paid to
dealers will be described in the applicable prospectus supplement and may be
changed from time to time.
Underwriters, dealers and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from Apache and/or an Apache Trust and any
profit on their resale of the securities may be treated as underwriting
discounts and commissions under the Securities Act. The applicable prospectus
supplement will identify any underwriters, dealers or agents and will describe
their compensation. Apache and the Apache Trusts may have agreements with the
underwriters, dealers and agents to indemnify them against certain civil
liabilities, including liabilities under the Securities Act. Underwriters,
dealers and agents may engage in transactions with or perform services for us or
our subsidiaries in the ordinary course of their businesses.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement, each
class or series of securities will be a new issue with no established trading
market, other than the common stock, which is listed on the New York Stock
Exchange and the Chicago Stock Exchange. Apache and the Apache Trusts may elect
to list any other class or series of securities on any exchange but are not
obligated to do so. It is possible that one or more underwriters may make a
market in a class or series of securities, but the underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. Neither Apache nor the Apache Trusts can give any assurance as to the
liquidity of the trading market for any of the securities.
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STABILIZATION ACTIVITIES
Any underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act. Over-allotment involves sales in excess of
the offering size, which create a short position. Stabilizing transactions
permit bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum. Short-covering transactions involve purchases
of the securities in the open market after the distribution is completed to
cover short positions. Penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the securities originally sold by the dealer are
purchased in a covering transaction to cover short positions. Those activities
may cause the price of the securities to be higher than it would otherwise be.
If commenced, the underwriters may discontinue any of the activities at any
time.
LEGAL MATTERS
The legality of the securities issued by Apache will be passed upon for
Apache by its Vice President and General Counsel, Z. S. Kobiashvili, or its
Attorney and Assistant Secretary, Jeffrey B. King. As of the date of this
prospectus, Mr. Kobiashvili holds employee stock options to purchase 56,550
shares of Apache common stock, of which options to purchase 30,125 shares are
currently exercisable, and he holds 1,522 units in Apache's Deferred Delivery
Plan, each equivalent to one share of Apache common stock. As of the date of
this prospectus, Mr. King owns 52 shares of Apache common stock through Apache's
401(k) savings plan and holds employee stock options to purchase 3,950 shares of
Apache common stock, of which options to purchase 487 shares are currently
exercisable. In addition, other customary legal matters relating to the offering
of the securities issued by Apache, including matters relating to our due
incorporation, legal existence and authorized capitalization, will be passed
upon for Apache by Mr. Kobiashvili, Mr. King or Mayor, Day, Caldwell & Keeton,
L.L.P., Houston, Texas. The legality of the securities issued by the Apache
Trusts and certain matters of Delaware law will be passed upon for the Apache
Trusts by Richards, Layton & Finger, P.A., special Delaware counsel to the
Apache Trusts. Unless otherwise specified in the accompanying prospectus
supplement, certain legal matters will be passed upon for any underwriters or
agents by Brown & Wood LLP, New York, New York.
EXPERTS
The audited consolidated financial statements of Apache incorporated by
reference into this prospectus, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated by reference herein in reliance upon the authority
of said firm as experts in accounting and auditing in giving said report.
The information incorporated by reference into this prospectus regarding
the total proved reserves of Apache was prepared by Apache and reviewed by Ryder
Scott Company Petroleum Engineers, as stated in their letter reports, and is
incorporated by reference in reliance upon the authority of said firm as experts
in such matters. The information incorporated by reference into this prospectus
regarding the total estimated proved reserves acquired from Texaco Exploration
and Production Inc. was prepared by Apache and reviewed by Ryder Scott, as
stated in their letter reports, and is incorporated by reference in reliance
upon the authority of that firm as experts in these matters. The information
incorporated by reference into this prospectus regarding the total proved
reserves of DEKALB was prepared by DEKALB and for the four years ended December
31, 1994 was reviewed by Ryder Scott, as stated in their letter reports with
respect thereto, and is incorporated by reference in reliance upon the authority
of that firm as experts in these matters.
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A portion of the information incorporated by reference in this prospectus
regarding the total proved reserves of Aquila Energy Resources Corporation
acquired by Apache was prepared by Netherland, Sewell & Associates, Inc. as of
December 31, 1994, as stated in their letter report, and is incorporated by
reference in reliance upon the authority of that firm as experts in those
matters. Netherland, Sewell did not review any of the reserves of Aquila
acquired during 1995.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Estimated expenses, other than underwriting discounts and commissions, in
connection with the issuance and distribution of the securities are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee............... $264,000
Rating agency fees.......................................... 50,000
Legal fees and expenses..................................... 200,000
Accounting fees and expenses................................ 75,000
Trustees' fees and expenses................................. 40,000
Printing and engraving...................................... 100,000
Miscellaneous............................................... 30,000
--------
Total............................................. $759,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Apache's Certificate of Incorporation and bylaws provide that, to the full
extent permitted under the Delaware General Corporation Law, Apache's directors
shall not be personally liable for monetary damages and Apache shall indemnify
its officers, directors, employees and agents.
Section 145 of the Delaware General Corporation Law, inter alia, authorizes
a corporation to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, other than an action by or in the right of the corporation, because
such person is or was a director, officer, employee or agent of the corporation
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation or other enterprise, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reason to believe his conduct was
unlawful. Similar indemnity is authorized for such persons against expenses,
including attorneys' fees, actually and reasonably incurred in defense or
settlement of any such pending, completed or threatened action or suit by or in
the right of the corporation if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and provided further that, unless a court of competent jurisdiction
otherwise provides, such person shall not have been adjudged liable to the
corporation. Any such indemnification may be made only as authorized in each
specific case upon a determination by the stockholders or disinterested
directors that indemnification is proper because the indemnitee has met the
applicable standard of conduct.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him. Apache maintains policies
insuring its and its subsidiaries' officers and directors against certain
liabilities for actions taken in such capacities, including liabilities under
the Securities Act of 1933.
Article VII of Apache's bylaws provides, in substance, that directors,
officers, employees and agents of Apache shall be indemnified to the extent
permitted by Section 145 of the Delaware
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General Corporation Law. Additionally, Article Seventeen of Apache's restated
certificate of incorporation eliminates in certain circumstances the monetary
liability of directors of Apache for a breach of their fiduciary duty as
directors. These provisions do not eliminate the liability of a director:
- for a breach of the director's duty of loyalty to Apache or its
stockholders;
- for acts or omissions by the director not in good faith;
- for acts or omissions by a director involving intentional misconduct or a
knowing violation of the law;
- under Section 174 of the Delaware General Corporation Law, which relates
to the declaration of dividends and purchase or redemption of shares in
violation of the Delaware General Corporation Law; and
- for transactions from which the director derived an improper personal
benefit.
Reference is made to the form of underwriting agreements to be incorporated
by reference in this registration statement for a description of the
indemnification arrangements Apache and the Apache Trusts agree to in connection
with offerings of the securities registered by this registration statement.
The Apache Trusts' trust agreements provide that no trustee, affiliate of
any trustee or any officers, directors, stockholders, members, partners,
employees, representatives or agents of any trustee or any employee or agent of
the Apache Trust or its affiliates, each referred to as an "indemnified person,"
shall be liable, responsible or accountable in damages or otherwise to the
Apache Trust or its affiliates, or any officers, directors, stockholders,
employees, representatives or agents of Apache or its affiliates or to any
holders of trust preferred securities of the Apache Trust for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by the
indemnified person in good faith on behalf of such Apache Trust and in a manner
the indemnified person reasonably believed to be within the scope of the
authority conferred on it by the trust agreement or by law, except that the
indemnified person shall be liable for any loss, damage or claim incurred by
reason of that indemnified person's gross negligence (or, in the case of the
property trustee of the Apache Trust, negligence), bad faith or willful
misconduct with respect to such acts or omissions. The trust agreements also
provide that Apache shall indemnify each administrative trustee, their
affiliates, any officers, directors, shareholders, members, partners, employees,
representatives or agents of any administrative trustee or any affiliate of any
administrative trustee, or any officer, employee or agent of the Apache Trust or
its affiliates, each referred to as a "company indemnified person," who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Apache Trust),
against expenses (including reasonable attorney's fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred if such company
indemnified person acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Apache Trust, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. Apache will also indemnify any company indemnified
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the Apache
Trust to procure a judgment in its favor against expenses (including reasonable
attorneys' fees) actually and reasonably incurred by him if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Apache Trust, except that no such indemnification shall be made
if such company indemnified person shall have been adjudged to be liable to the
Trust.
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The trust agreement further provides that expenses (including legal fees)
incurred by a company indemnified person in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall, from time to
time, be advanced by Apache prior to the final disposition of such action, suit
or proceeding upon receipt by Apache of an undertaking by or on behalf of the
company indemnified person to repay such amount if it shall be determined that
the company indemnified person is not entitled to be indemnified pursuant to the
trust agreement.
The trust agreements also provide that Apache shall indemnify the property
trustee, the Delaware trustee, any affiliate of the property trustee or the
Delaware trustee, and any officers, directors, shareholders, members, partners,
employees, representatives, custodians, nominees or agents of the property
trustee or Delaware trustee, each a "fiduciary indemnified person," for and hold
each such fiduciary indemnified person harmless against any loss, liability or
expense to the extent incurred without gross negligence (or in the case of the
property trustee, negligence), bad faith or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of the
Apache Trust, including costs and expenses (including reasonable legal fees and
expenses) of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties under
the trust agreement.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
1.1 -- Each form of underwriting agreement will be filed as an
exhibit to a current report of Apache and incorporated in
this registration statement by reference.
3.1 -- Restated Certificate of Incorporation of Apache
(incorporated by reference to Exhibit 99.1 to Apache's
Current Report on Form 8-K, dated December 17, 1999, SEC
File No. 1-4300).
3.2 -- Bylaws of Apache, as amended through July 14, 1999
(incorporated by reference to Exhibit 3.1 to Amendment
No. 1 to Apache's Current Report on Form 8-K/A, dated May
18, 1999 and filed July 30, 1999, SEC File No. 1-4300).
4.1 -- Form of Apache's common stock certificate (incorporated
by reference to Exhibit 4.1 to the Apache's Annual Report
on Form 10-K for year ended December 31, 1995, SEC File
No. 1-4300).
4.2 -- Rights Agreement dated January 31, 1996, between Apache
and Norwest Bank Minnesota, N.A., rights agent, relating
to the declaration of a rights dividend to Apache's
common shareholders of record on January 31, 1996
(incorporated by reference to Exhibit (a) to Apache's
Registration Statement on Form 8-A, dated January 24,
1996, SEC File No. 1-4300).
4.3 -- Form of Apache's Right Certificate (incorporated by
reference to Exhibit (b) to Apache's Registration
Statement on Form 8-A, dated January 24, 1996, SEC File
No. 1-4300).
4.4 -- Form of Indenture between Apache and The Chase Manhattan
Bank, as Trustee and successor to Chemical Bank,
governing the senior debt securities (incorporated by
reference to Exhibit 4.1 to Apache's Registration
Statement on Form S-3, Registration No. 33-63923, filed
November 2, 1995).
</TABLE>
II-3
<PAGE> 55
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
4.5 -- Form of First Supplemental Indenture between Apache and
The Chase Manhattan Bank, as Trustee governing the senior
debt securities (incorporated by reference to Exhibit 4.1
to Apache's Current Report on Form 8-K, dated November 4,
1996, SEC File No. 1-4300).
**4.6 -- Form of Subordinated Indenture.
4.7 -- Each form of deposit agreement will be filed as an
exhibit to a current report of Apache and incorporated in
this registration statement by reference.
4.8 -- Each form of preferred securities certificate of
designation will be filed as an exhibit to a current
report of Apache and incorporated in this registration
statement by reference.
**4.9 -- Form of Trust Preferred Securities Guarantee Agreement
for Apache Trust I and Apache Trust II.
*4.10 -- Certificate of Trust of Apache Trust I.
*4.11 -- Certificate of Trust of Apache Trust II.
*4.12 -- Trust Agreement of Apache Trust I.
*4.13 -- Trust Agreement of Apache Trust II.
**4.14 -- Form of Amended and Restated Trust Agreement for Apache
Trust I and Apache Trust II.
**5.1 -- Opinion of Apache counsel regarding legality of
securities being registered by Apache.
**5.2 -- Opinion of Richards, Layton & Finger, P.A. regarding
legality of securities being registered by Apache Trust
I.
**5.3 -- Opinion of Richards, Layton & Finger, P.A. regarding
legality of securities being registered by Apache Trust
II.
12.1 -- Statements of computation of ratios of earnings to fixed
charges and ratios of earnings to combined fixed charges
and preferred stock dividends (incorporated by reference
to Exhibit 12.1 to Apache's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1999, SEC File No.
1-4300).
*23.1 -- Consent of Arthur Andersen LLP, Houston, Texas.
*23.2 -- Consent of Ryder Scott Company L.P.
*23.3 -- Consent of Netherland, Sewell & Associates, Inc.
**23.4 -- Consent of Apache counsel (included in Exhibit 5.1).
**23.5 -- Consent of Apache general counsel.
**23.6 -- Consent of Mayor, Day, Caldwell & Keeton, L.L.P.
**23.7 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.2 and 5.3).
*24.1 -- Power of Attorney (included in Part II as a part of the
signature pages of the Registration Statement).
*24.2 -- Power of Attorney for Apache, as sponsor, to sign the
Registration Statement on behalf Apache Trust I (included
in Exhibit 4.12).
*24.3 -- Power of Attorney for Apache, as sponsor, to sign the
Registration Statement on behalf of Apache Trust II
(included in Exhibit 4.13).
</TABLE>
II-4
<PAGE> 56
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
**25.1 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as trustee under the Senior Indenture.
**25.2 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as trustee under the Subordinated Indenture.
**25.3 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as property trustee under the Amended and Restated Trust
Agreement for Apache Trust I.
**25.4 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as property trustee under the Amended and Restated Trust
Agreement for Apache Trust II.
**25.5 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as guarantee trustee under the Trust Preferred Securities
Guarantee Agreement for Apache Trust I.
**25.6 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as guarantee trustee under the Trust Preferred Securities
Guarantee Agreement for Apache Trust II.
</TABLE>
- ---------------
* Previously filed.
** Filed herewith.
ITEM 17. UNDERTAKINGS
1. The undersigned Registrants hereby undertake:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement.
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculations of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to
II-5
<PAGE> 57
Section 13 or 15(d) of the Securities Exchange Act of 1934, that are
incorporated by reference in the Registration Statement;
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof; and
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Apache's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration Statement) shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933, may be permitted to directors, officers and controlling persons of
the Registrants pursuant to the provisions described under Item 15 above, or
otherwise, the Registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
any Registrant of expenses incurred or paid by a director, officer or
controlling person of that Registrant in the successful defense of any action,
suit or proceeding) is asserted against any Registrant by such director, officer
or controlling person in connection with the securities being registered, that
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
4. The undersigned Registrants hereby undertake that:
(a) For the purpose of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act, as amended, shall be
deemed to be part of this Registration Statement as of the time it was
declared effective; and
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
5. The undersigned Registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-6
<PAGE> 58
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Houston, State of Texas on March 28, 2000.
APACHE CORPORATION
By: /s/ RAYMOND PLANK*
----------------------------------
Raymond Plank,
Chairman and Chief Executive
Officer
APACHE TRUST I
By: Apache Corporation, as sponsor
By: /s/ RAYMOND PLANK*
----------------------------------
Raymond Plank,
Chairman and Chief Executive
Officer
APACHE TRUST II
By: Apache Corporation, as sponsor
By: /s/ RAYMOND PLANK*
----------------------------------
Raymond Plank,
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons, in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S> <C>
/s/ RAYMOND PLANK* Chairman and Chief Executive
- --------------------------------------------------- Officer (Principal
Raymond Plank Executive Officer)
/s/ ROGER B. PLANK* Vice President and Chief
- --------------------------------------------------- Financial Officer
Roger B. Plank (Principal Financial
Officer)
/s/ THOMAS L. MITCHELL* Vice President and Controller
- --------------------------------------------------- (Principal Accounting
Thomas L. Mitchell Officer)
</TABLE>
<PAGE> 59
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S> <C>
/s/ FREDERICK M. BOHEN* Director
- ---------------------------------------------------
Frederick M. Bohen
/s/ G. STEVEN FARRIS* Director
- ---------------------------------------------------
G. Steven Farris
/s/ RANDOLPH M. FERLIC* Director
- ---------------------------------------------------
Randolph M. Ferlic
/s/ EUGENE C. FIEDOREK* Director
- ---------------------------------------------------
Eugene C. Fiedorek
/s/ A.D. FRAZIER, JR.* Director
- ---------------------------------------------------
A.D. Frazier, Jr.
/s/ STANLEY K. HATHAWAY* Director
- ---------------------------------------------------
Stanley K. Hathaway
/s/ JOHN A. KOCUR* Director
- ---------------------------------------------------
John A. Kocur
/s/ GEORGE D. LAWRENCE JR.* Director
- ---------------------------------------------------
George D. Lawrence Jr.
/s/ MARY RALPH LOWE* Director
- ---------------------------------------------------
Mary Ralph Lowe
/s/ F. H. MERELLI* Director
- ---------------------------------------------------
F. H. Merelli
/s/ RODMAN D. PATTON* Director
- ---------------------------------------------------
Rodman D. Patton
/s/ JOSEPH A. RICE* Director
- ---------------------------------------------------
Joseph A. Rice
* By: /s/ Z. S. KOBIASHVILI Dated March 28, 2000
--------------------------------------------
Z. S. Kobiashvili
Attorney-in-fact
</TABLE>
<PAGE> 60
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
------- -----------
<C> <S>
4.6 -- Form of Subordinated Indenture.
4.9 -- Form of Trust Preferred Securities Guarantee Agreement
for Apache Trust I and Apache Trust II.
4.14 -- Form of Amended and Restated Trust Agreement for Apache
Trust I and Apache Trust II.
5.1 -- Opinion of Apache counsel regarding legality of
securities being registered by Apache.
5.2 -- Opinion of Richards, Layton & Finger, P.A. regarding
legality of securities being registered by Apache Trust
I.
5.3 -- Opinion of Richards, Layton & Finger, P.A. regarding
legality of securities being registered by Apache Trust
II.
23.4 -- Consent of Apache counsel (included in Exhibit 5.1).
23.5 -- Consent of Apache general counsel.
23.6 -- Consent of Mayor, Day, Caldwell & Keeton, L.L.P.
23.7 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.2 and 5.3).
25.1 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as trustee under the Senior Indenture.
25.2 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as trustee under the Subordinated Indenture.
25.3 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as property trustee under the Amended and Restated Trust
Agreement for Apache Trust I.
25.4 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as property trustee under the Amended and Restated Trust
Agreement for Apache Trust II.
25.5 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as guarantee trustee under the Trust Preferred Securities
Guarantee Agreement for Apache Trust I.
25.6 -- Form T-1 Statement of Eligibility and Qualification under
Trust Indenture Act of 1939 of The Chase Manhattan Bank
as guarantee trustee under the Trust Preferred Securities
Guarantee Agreement for Apache Trust II.
</TABLE>
<PAGE> 1
EXHIBIT 4.6
APACHE CORPORATION,
Issuer
to
THE CHASE MANHATTAN BANK,
Trustee
-----------------------
INDENTURE
------------------------
Dated as of __________, 2000
Subordinated Debt Securities
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
Section 310(a)(1) 607
(a)(2) 607
(b) 608
Section 311 604
Section 312(a) 701
(b) 702
(c) 702
Section 313(a) 703
(c) 703
(d) 703
Section 314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
Section 315(a) 303
(b) 303
(c) 303
(d) 303
(e) 608
Section 316(a)(last sentence) 101
(a)(1)(A) 502,512
(a)(1)(B) 513
(b) 508
Section 317(a)(1) 503
(a)(2) 504
(b) 1003
Section 318(a) 108
</TABLE>
- --------------------------------------------------------------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to and
including 317 are a part of and govern every qualified indenture, whether or not
physically contained therein.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS..........................................................................................................1
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.....................................................................................1
"Act".......................................................................................................2
"Additional Amounts"........................................................................................2
"Affiliate..................................................................................................2
"Authenticating Agent"......................................................................................2
"Authorized Newspaper"......................................................................................2
"Bearer Security"...........................................................................................2
"Board of Directors"........................................................................................3
"Board Resolution"..........................................................................................3
"Business Day"..............................................................................................3
"Change in Control".........................................................................................3
"Change in Control Purchase Date"...........................................................................3
"Change in Control Purchase Notice".........................................................................3
"Change in Control Purchase Price"..........................................................................3
"Commission"................................................................................................3
"Common Stock"..............................................................................................3
"Company"...................................................................................................3
"Company Request" and "Company Order".......................................................................3
"Conversion Agent"..........................................................................................3
"Conversion Event".........................................................................................3
"Corporate Trust Office"....................................................................................4
"Corporation"...............................................................................................4
"Coupon"....................................................................................................4
"Currency"..................................................................................................4
"CUSIP number"..............................................................................................4
"Default"...................................................................................................4
"Defaulted Interest"........................................................................................4
"Direct Action".............................................................................................4
"Dollars" or "$"............................................................................................4
"EC Treaty".................................................................................................4
"Euro"......................................................................................................4
"European Monetary System"..................................................................................4
"Event of Default"..........................................................................................4
"Foreign Currency"..........................................................................................4
"GAAP"......................................................................................................5
"Government Obligations"....................................................................................5
"Holder"....................................................................................................5
"Indebtedness"..............................................................................................5
"Indebtedness Ranking on a Parity with the Securities"......................................................6
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
"Indebtedness Ranking Junior to the Securities".............................................................6
"Indenture".................................................................................................6
"Independent Public Accountants"............................................................................6
"Indexed Security"..........................................................................................6
"Interest"..................................................................................................6
"Interest Payment Date".....................................................................................7
"Judgment Currency".........................................................................................7
"Legal Holidays"............................................................................................7
"Maturity"..................................................................................................7
"New York Banking Day"......................................................................................7
"Office" or "Agency"........................................................................................7
"Officers' Certificate".....................................................................................7
"Opinion of Counsel"........................................................................................7
"Original Issue Discount Security"..........................................................................7
"Outstanding"...............................................................................................7
"Paying Agent"..............................................................................................9
"Person"....................................................................................................9
"Place of Payment"..........................................................................................9
"Predecessor Security"......................................................................................9
"Preferred Securities"......................................................................................9
"Redemption Date"...........................................................................................9
"Redemption Price"..........................................................................................9
"Registered Security".......................................................................................9
"Regular Record Date".......................................................................................9
"Required Currency".........................................................................................9
"Responsible Officer".......................................................................................9
"Security" or "Securities".................................................................................10
"Security Register" and "Security Registrar"...............................................................10
"Senior Indebtedness"......................................................................................10
"Special Record Date"......................................................................................10
"Stated Maturity"..........................................................................................10
"Subsidiary"...............................................................................................10
"Trust"....................................................................................................10
"Trust Agreement"..........................................................................................10
"Trust Indenture Act"......................................................................................10
"Trust Securities".........................................................................................10
"Trustee"..................................................................................................10
"United States"............................................................................................11
"United States Alien"......................................................................................11
"U.S. Depository" or "Depository"..........................................................................11
"Vice President"...........................................................................................11
"Voting Stock".............................................................................................11
Section 102. Compliance Certificates and Opinions...........................................................11
Section 103. Form of Documents Delivered to Trustee.........................................................12
Section 104. Acts of Holders and Holders of Preferred Securities............................................12
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
Section 105. Notices, etc. to Trustee and Company...........................................................14
Section 106. Notice to Holders of Securities; Waiver........................................................15
Section 107. Language of Notices............................................................................16
Section 108. Conflict with Trust Indenture Act..............................................................16
Section 109. Effect of Headings and Table of Contents.......................................................16
Section 110. Successors and Assigns.........................................................................16
Section 111. Separability Clause............................................................................16
Section 112. Benefits of Indenture..........................................................................16
Section 113. Governing Law..................................................................................16
Section 114. Legal Holidays.................................................................................17
Section 115. Counterparts...................................................................................17
Section 116. Judgment Currency..............................................................................17
ARTICLE 2.
SECURITIES FORM
Section 201. Forms Generally................................................................................18
Section 202. Form of Trustee's Certificate of Authentication................................................18
Section 203. Securities in Global Form......................................................................18
ARTICLE 3.
THE SECURITIES
Section 301. Amount Unlimited, Issuable in Series...........................................................19
Section 302. Currency; Denominations........................................................................23
Section 303. Execution, Authentication, Delivery and Dating.................................................23
Section 304. Temporary Securities...........................................................................25
Section 305. Registration, Transfer and Exchange............................................................26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...............................................29
Section 307. Payment of Interest and Certain Additional Amounts; Rights to Interest and
Certain Additional Amounts Preserved...........................................................30
Section 308. Persons Deemed Owners..........................................................................32
Section 309. Cancellation...................................................................................33
Section 310. Computation of Interest........................................................................33
ARTICLE 4.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.....................................................................33
Section 402. Defeasance and Covenant Defeasance.............................................................35
Section 403. Application of Trust Money.....................................................................39
Section 404. Reinstatement..................................................................................39
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE 5.
REMEDIES
<S> <C> <C>
Section 501. Events of Default..............................................................................40
Section 502. Acceleration of Maturity: Rescission and Annulment.............................................41
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee................................43
Section 504. Trustee May File Proofs of Claim...............................................................43
Section 505. Trustee May Enforce Claim without Possession of Securities or Coupons..........................44
Section 506. Application of Money Collected.................................................................44
Section 507. Limitations on Suits...........................................................................45
Section 508. Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts.............................................................................46
Section 509. Restoration of Rights and Remedies.............................................................46
Section 510. Rights and Remedies Cumulative.................................................................46
Section 511. Delay or Omission Not Waiver...................................................................47
Section 512. Control by Holders of Securities...............................................................47
Section 513. Waiver of Past Defaults........................................................................47
Section 514. Waiver of Stay or Extension Laws...............................................................48
Section 515. Undertaking for Costs..........................................................................48
Section 516. Direct Action Right of Holders of Trust Preferred Securities...................................48
ARTICLE 6.
THE TRUSTEE
Section 601. Certain Rights of Trustee......................................................................49
Section 602. Notice of Defaults.............................................................................50
Section 603. Not Responsible for Recitals or Issuance of Securities.........................................50
Section 604. May Hold Securities............................................................................51
Section 605. Money Held in Trust............................................................................51
Section 606. Compensation and Reimbursement.................................................................51
Section 607. Corporate Trustee Require; Eligibility.........................................................52
Section 608. Resignation and Removal, Appointment of Successor..............................................52
Section 609. Acceptance of Appointment by Successor.........................................................54
Section 610. Merger, Conversion, Consolidation or Succession to Business....................................55
Section 611. Appointment of Authenticating Agent............................................................55
ARTICLE 7.
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......................................57
Section 702. Preservation of Information; Communications to Holders.........................................57
Section 703. Reports by Trustee.............................................................................58
Section 704. Reports by Company.............................................................................58
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
ARTICLE 8.
CONSOLIDATION, MERGER AND SALES
<S> <C> <C>
Section 801. Company May Consolidate, Etc., Only on Certain Terms...........................................59
Section 802. Successor Person Substituted for Company.......................................................59
ARTICLE 9.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.............................................60
Section 902. Supplemental Indentures with Consent of Holders................................................61
Section 903. Execution of Supplemental Indentures...........................................................62
Section 904. Effect of Supplemental Indentures..............................................................63
Section 905. Reference in Securities to Supplemental Indentures.............................................63
Section 906. Conformity with Trust Indenture Act............................................................63
ARTICLE 10.
COVENANTS
Section 1001. Payment of Principal, any Premium and Interest.................................................63
Section 1002. Maintenance of Office or Agency................................................................64
Section 1003. Money for Securities Payments to Be Held in Trust..............................................65
Section 1004. Additional Amounts.............................................................................67
Section 1005. No Restriction on Indebtedness or Liens........................................................68
Section 1006. Corporate Existence............................................................................68
Section 1007. Payment of Expenses of Each Trust..............................................................68
Section 1008. Waiver of Certain Covenants....................................................................68
Section 1009. Company Statement as to Compliance; Notice of Certain Defaults.................................68
ARTICLE 11.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.......................................................................69
Section 1102. Election to Redeem; Notice to Trustee..........................................................69
Section 1103. Selection by Trustee of Securities to be Redeemed..............................................69
Section 1104. Notice of Redemption...........................................................................70
Section 1105. Deposit of Redemption Price....................................................................71
Section 1106. Securities Payable on Redemption Date..........................................................71
Section 1107. Securities Redeemed in Part....................................................................72
ARTICLE 12.
REPAYMENT AT THE OPTION OF HOLDERS
Section 1201. Applicability of Article.......................................................................73
</TABLE>
v
<PAGE> 8
<TABLE>
<CAPTION>
ARTICLE 13.
SECURITIES IN FOREIGN CURRENCIES
<S> <C> <C>
Section 1301. Applicability of Article.......................................................................73
ARTICLE 14.
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. Purposes for Which Meetings May Be Called......................................................74
Section 1402. Call, Notice and Place of Meetings.............................................................74
Section 1403. Persons Entitled to Vote at Meetings...........................................................74
Section 1404. Quorum; Action.................................................................................75
Section 1405. Determination of Voting Rights, Conduct and Adjournment of Meetings............................75
Section 1406. Counting Votes and Recording Action of Meetings................................................76
ARTICLE 15.
PURCHASE OF SECURITIES UPON CHANGE IN CONTROL
Section 1501. Purchase of Securities at Option of the Holder upon Change in Control..........................77
Section 1502. Effect of Change in Control Purchase Notice....................................................80
Section 1503. Deposit of Change in Control Purchase Price....................................................80
Section 1504. Covenant to Comply With Securities Laws Upon Purchase of Securities............................81
Section 1505. Repayment to the Company.......................................................................81
ARTICLE 16.
SUBORDINATION
Section 1601. Securities Subordinated to Senior Indebtedness.................................................81
Section 1602. Priority and Payment of Proceeds in Certain Events: Remedies Standstill........................81
Section 1603. Payments which May Be Made Prior to Notice.....................................................83
Section 1604. Rights of Holders of Senior Indebtedness Not to Be Impaired....................................83
Section 1605. Trustee May Take Action to Effectuate Subordination............................................83
Section 1606. Subrogation....................................................................................83
Section 1607. Obligations of Company Unconditional; Reinstatement............................................84
Section 1608. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice........................84
Section 1609. Right of Trustee to Hold Senior Indebtedness...................................................85
Section 1610. Notice to Trustee..............................................................................85
Section 1611. Reliance on Judicial Order or Certificate of Liquidating Agent.................................86
Section 1612. Trustee Not Fiduciary for Holders of Senior Indebtedness.......................................86
</TABLE>
vi
<PAGE> 9
INDENTURE, dated as of ____________, 2000 (the "Indenture"), among
APACHE CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware (hereinafter called the "Company"), having its principal
executive office located at One Post Oak Central, 2000 Post Oak Boulevard, Suite
100, Houston, Texas 77056-4400, and The Chase Manhattan Bank, a banking
corporation duly organized and existing under the laws of the State of New York
(hereinafter called the "Trustee"), having its Corporate Trust Office located at
450 West 33rd Street, 15th Floor, New York, New York 10001.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidence of Indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company may from time to time create or establish one or more
statutory business trusts for the purpose of issuing undivided beneficial
interests in the assets thereof and using the proceeds thereof to acquire the
Company's Securities.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
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(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the terms "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the
date of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are defined
in those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer.
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"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Change in Control" has the meaning specified in Section 1501.
"Change in Control Purchase Date" has the meaning specified in Section
1501.
"Change in Control Purchase Notice" has the meaning specified in
Section 1501.
"Change in Control Purchase Price" has the meaning specified in Section
1501.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture and thereafter "Company"
shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board of Directors, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company to
convert or exchange any Security pursuant to its terms on behalf of the Company.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
(other than the Euro) both by the government of the country or the confederation
which issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of
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or within the international banking community, (ii) the Euro both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Monetary System or (iii) any currency
unit or composite currency other than the Euro for the purposes for which it was
established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of original execution of this
Indenture is located at 450 West 33rd Street, 15th Floor, New York, New York
10001.
"Corporation" includes corporations and limited liability companies
and, except, for purposes of Article Eight, associations, companies and business
trusts.
"Coupon" a means any interest coupon appertaining to a Bearer Security.
"Currency," with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security and, with respect to
any other payment, deposit or transfer pursuant to or contemplated by the terms
hereof or such Security, means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"Default" means any event which is, or after notice or passage of time,
or both, would be, an Event of Default pursuant to Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Direct Action" has the meaning specified in Section 516.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"EC Treaty" means the treaty establishing the European Community
(signed in Rome on 25th March, 1957), as amended by the Treaty on European Union
(signed in Maastricht on 7th February, 1992).
"Euro" means the lawful currency of the member states of the European
Union that adopt the single currency in accordance with the EC Treaty.
"European Monetary System" means the European Economic and Monetary
Union.
"Event of Default" has the meaning specified in Section 501.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the Euro, issued by the government of
one or more countries
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other than the United States of America or by any recognized confederation or
association of such governments.
"GAAP" means such accounting principles as are generally accepted in
the United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such security or any additional
amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"Holder," in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the case
of any Bearer Security, means the bearer thereof and, in the case of any Coupon,
means the bearer thereof.
"Indebtedness," with respect to any Person, means (a) indebtedness for
borrowed money and deferred payment obligations representing the unpaid purchase
price of real or personal property of, or guaranteed by, such Person, other than
accounts payable arising in the ordinary course of business payable on terms
customary in the trade, (b) indebtedness secured by Liens (as defined in Section
1005) or payable out of the proceeds of production from property, (c)
indebtedness which is evidenced by mortgages, notes, bonds, debentures,
acceptances or other instruments, (d) indebtedness which must be capitalized as
liabilities under GAAP, (e) liabilities under interest rate swap, exchange,
collar or cap agreements and all other agreements or arrangements designed to
protect against fluctuations in interest rates or currency exchange rates, (f)
liabilities under commodity hedge, commodity swap, exchange, collar or cap
agreements, fixed price agreements and all other agreements or arrangements
designed to protect against fluctuations in oil and gas prices, (g) guarantees
and endorsements of obligations of others, directly or indirectly, and all
other repurchase agreements and indebtedness in effect guaranteed through an
agreement, contingent or otherwise, to purchase such indebtedness, or to
purchase or sell property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of the indebtedness or to assure
the owner of the indebtedness against loss, or to supply funds to or in any
manner invest in the debtor, or otherwise to assure a creditor against loss (but
excluding guarantees and endorsements of notes, bills and checks made in the
ordinary course of business); and (h) indebtedness relative to the amount of all
letters of credit; provided, however, that such term shall not include any
amounts included as deferred credits on the financial statements of such Person
or of a consolidated group including such Person, and computed in accordance
with GAAP.
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<PAGE> 14
"Indebtedness Ranking on a Parity with the Securities" means (i)
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, assumed or incurred, to the extent such Indebtedness
specifically by its terms ranks pari passu with and not prior to the Securities
in the right of payment upon the happening of the dissolution, winding-up,
liquidation or reorganization of the Company.
"Indebtedness Ranking Junior to the Securities" means any Indebtedness,
whether outstanding on the date of execution of this Indenture or thereafter
created, assumed or incurred, to the extent such Indebtedness by its terms ranks
junior to and not pari passu with or prior to the Securities (and any other
Indebtedness Ranking on a Parity with the Securities) in right of payment upon
the happening of the dissolution, winding-up, liquidation or reorganization of
the Company. The securing of any Indebtedness otherwise constituting
Indebtedness Ranking Junior to the Securities shall not be deemed to prevent
such Indebtedness from constituting Indebtedness Ranking Junior to the
Securities.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the meaning
of the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to
this Indenture or certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
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<PAGE> 15
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holidays", with respect to any Place of Payment or other
location, means a Saturday, a Sunday or a day on which banking institutions in
such Place of Payment or other location are not authorized or obligated to be
open.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date and Change in Control Purchase Date.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency," with respect to any Securities, means an office
or agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the Company
maintained or designated for such Securities pursuant to Section 1002 or, to the
extent designated or required by Section 1002 in lieu of such office or agency,
the Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 502.
"Outstanding," when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(b) any such Security for whose payment either at the Maturity
thereof or upon the Company becoming obligated (subject to
withdrawal of any Change in Control Purchase Notice) to pay
the Change in Control Purchase Price, money in the necessary
amount has been theretofore deposited pursuant hereto (other
than
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pursuant to Section 402) with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any
Coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Company has
effected defeasance or covenant defeasance pursuant to Section
402, except to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
unless there shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a protected
purchaser in whose hands such Security is a valid obligation
of the Company; and
(e) if the Securities are convertible or exchangeable into other
securities, Securities converted or exchanged as contemplated
by this Indenture, and such Securities if such other
securities have been either (i) delivered to the Holders
thereof in accordance with this Indenture or (ii) deposited
with and are held by the Paying Agent in trust for the Holders
of such Securities in accordance with this Indenture and such
Securities, provided in the case of this clause (ii) that any
applicable notice of conversion or exchange has been duly
given to the Holders thereof pursuant to this Indenture and
such securities.
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company (other than any Trust so long as any
of the Preferred Securities of such Trust are outstanding) or such other
obligor, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer
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of the Trustee knows to be so owned shall be so disregarded. Securities so owned
which shall have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee (A) the pledgee's
right so to act with respect to such Securities and (B) that the pledgee is not
the Company or any other obligor upon the Securities or any Coupons appertaining
thereto or an Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment," with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Preferred Securities" means the preferred securities of a Trust,
representing undivided beneficial interests in the assets of such Trust.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"Redemption Price," with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture or such Security.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office with direct responsibility for the administration of this Indenture
and also means, with respect
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to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case may
be, authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means all Indebtedness, whether outstanding on
the date of execution of this Indenture or thereafter created, assumed or
incurred, except Indebtedness Ranking on a Parity with the Securities or
Indebtedness Ranking Junior to the Securities.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
"Trust" means any statutory business trust created or established by
the Company as a direct or indirect wholly-owned subsidiary to issue Trust
Securities and to use the proceeds from the sale thereof to purchase Securities.
"Trust Agreement" means the agreement or declaration establishing the
terms and conditions of a Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trust Securities" means the Preferred Securities and common securities
of a Trust, each representing undivided beneficial interests in the assets of
such Trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series
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of Securities pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" shall mean each such Person and as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of such
series.
"United States", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"United States Alien," except as otherwise provided in or pursuant to
this Indenture or any Security, means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such Corporation,
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
or any of them is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
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Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by or
covered by an opinion of any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based. insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that information with respect
to such factual matters is in the possession of the Company unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respell to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders and Holders of Preferred Securities.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this
Indenture to be given or taken by Holders or by holders of Preferred
Securities may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders or holders of
Preferred Securities, as applicable, in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are
issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or
pursuant to this Indenture to be given or taken by Holders of
Securities of such series or by holders of Preferred Securities may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series or by holders of Preferred Securities voting
in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of Article Fourteen,
or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders or holders of Preferred Securities
signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 315 of the Trust Indenture Act) conclusive in favor
of the Trustee
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and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section 104. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section
1406.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder,
including a U.S. Depository that is a Holder of a global Security, may
make, give or take, by a proxy, or proxies, duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver
or other Act provided in or pursuant to this Indenture to be made,
given or taken by Holders, and a U.S. Depository that is a Holder of a
global Security may provide its proxy or proxies to the beneficial
owners of interests in any such global Security through such U.S.
Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any
permanent global Security held by a U.S. Depository entitled under the
procedures of such U.S. Depository to make, give or take, by a proxy or
proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other Act provided in or pursuant
to this Indenture to be made, given or taken by Holders. If such a
record date is fixed, the Holders on such record date or their duly
appointed proxy or proxies, and only such Persons, shall be entitled to
make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other Act, whether or not such Holders
remain Holders after such record date. No such request, demand,
authorization, direction, notice, consent, waiver or other Act shall be
valid or effective if made, given or taken more than 90 days after such
record date.
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which
the Trustee deems sufficient and in accordance with such reasonable
rules as the Trustee may determine; and the Trustee may in any instance
require further proof with respect to any of the matters referred to in
this Section 104.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the
commencement and the date of the termination of holding the same, shall
be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement
and the date of the termination of holding the same, may be proved by
the production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such
certificate shall be deemed by the Company and the Trustee to be
satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities,
if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit
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bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by
some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no
longer Outstanding. The ownership, principal amount and serial numbers
of Bearer Securities held by the Person so executing such instrument or
writing and the date of the commencement and the date of the
termination of holding the same may also be proved in any other manner
which the Company and the Trustee deem sufficient.
(5) If the Company shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may at its option
(but is not obligated to), by Board Resolution, fix in advance a record
date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice,
consent, waiver or other Act. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of Registered Securities of record at the close of business on
such record date shall be deemed to be Holders for the purpose of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or
consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions
of this Indenture not later than six months after the record date.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or
suffered to be done by the Trustee, any Security Registrar, any Paying
Agent, any Conversion Agent or the Company in reliance thereon, whether
or not notation of such Act is made upon such Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or holders of Preferred Securities or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder or holder of a Preferred
Security or the Company shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Market Fiduciary
Services, or
(2) the Company by the Trustee or any Holder or holder of a
Preferred Security shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to the attention
of its Treasurer at the address of its principal office specified in
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the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first such
publication to be not earlier than the earliest date and the second
such publication not later than the latest date prescribed for the
giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
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Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Except as otherwise expressly provided herein with respect to holders
of Senior Indebtedness and holders of Preferred Securities, nothing in this
Indenture, any Security or any Coupon, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying Agent,
any Conversion Agent and their successors hereunder and the Holders of
Securities or Coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state without regard to the conflict of laws principles thereof.
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Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Business Day following
any Change in Control Purchase Date or Stated Maturity or Maturity of any
Security shall be a Legal Holiday at any Place of Payment, then (notwithstanding
any other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and no interest shall accrue on the amount payable on such date or at
such time for the period from and after such Interest Payment Date, Business Day
following any Change in Control Purchase Date, Stated Maturity or Maturity, as
the case may be, to the next succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, or Additional Amounts on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Banking Day preceding that on which a final unappealable judgment is
given and (b) the Company's obligations under this Indenture to make payments in
the Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
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ARTICLE 2.
SECURITIES FORM
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture shall be in the form
established by or pursuant to a Board Resolution, an Officer's Certificate or in
one or more indentures supplemental hereto, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by or pursuant to this Indenture or any indenture supplemental hereto
and may have such letters, numbers or other marks of identification and such
legends or endorsements placed thereon as may consistently herewith be
determined by the Officers executing such Security or Coupon as evidenced by
their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
-----------------------------
Authorized Officer
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Securities may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any
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Security in global form to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered pursuant
to Section 303 or 304 with respect thereto. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to a Security in global
form shall be in writing but need not be accompanied by or contained in an
Officers' Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat the Holder of a global security in registered form
as the Holder of the principal amount of Outstanding Securities represented by
such global Security.
ARTICLE 3.
THE SECURITIES
Section 301. Amount Unlimited, Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution, an
Officers' Certificate or established in one or more indentures supplemental
hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Securities of such series pursuant
to Section 304, 305, 306, 905 or 1107, upon repayment on part of any
Registered Security of such series pursuant to Article Twelve or
pursuant to the terms of such Securities);
(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the
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Bearer Securities are to be issuable with Coupons, without Coupons or
both, and any restrictions applicable to the offer, sale or delivery of
the Bearer Securities and the terms, if any, upon which Bearer
Securities may be exchanged for Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form and
(i) whether such Securities are to be issued in temporary or permanent
global form or both, (ii) whether beneficial owners of interests in any
such global Security may exchange such interests for Securities of the
same series and of like tenor and of any authorized form and
denomination, and the circumstances under which any such exchanges may
occur, if other than in the manner specified in Section 305, and (iii)
the name of the Depository or the U.S. Depository, as the case may be,
with respect to any global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Interest
Payment Date therefor prior to the exchange, if any, of such temporary
Bearer Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of
such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice,
if any, to Holders regarding the determination of interest on a
floating rate Security and the manner of giving such notice, and the
basis upon which interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(9) any deletions from, modifications of or additions to the
subordination provisions of Article Sixteen with respect to such
Securities, whether or not such subordination provisions are consistent
with the subordination provisions set forth therein;
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(10) the right, if any, to extend the interest payment periods
and the duration of any such extension, including the maximum
consecutive period, if any, during which interest payment periods may
be extended;
(11) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions (including payments made in cash in anticipation
of future sinking fund obligations) or at the option of a Holder and
the date or dates on which or the period or periods within which, the
price or prices at which, and the terms and conditions upon which,
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(12) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer or exchange
and notices or demands to or upon the Company in respect of such
Securities and this Indenture may be served, the extent to which, or
the manner in which, any interest payment or Additional Amounts on a
global Security on an Interest Payment Date, will be paid and the
manner in which any principal of or premium, if any, on any global
Security will be paid;
(13) whether any of such Securities are to be redeemable at
the option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(14) the right or obligation of any Holder or the Company to
convert or exchange any Security into Common Stock of the Company or
other securities of the Company and the terms and conditions of any
such conversion or exchange and, if so provided, the terms and
conditions upon which such conversion or exchange will be effected,
including the conversion or exchange price, the conversion or exchange
date(s) or period(s), provisions as to whether conversion or exchange
will be at the option of the Holder or the Company, the events
requiring adjustment of the conversion or exchange price and provisions
affecting conversion or exchange in the event of redemption of the
Security of any series and any deletions from or modifications or
additions to this Indenture to permit or to facilitate the issuance of
such convertible or exchangeable Securities or the administration
thereof;
(15) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations
of $1,000 and any integral multiple thereof, and the denominations in
which any of such Securities that are Bearer Securities shall be
issuable if other than the denomination of $5,000;
(16) if other than the principal amount thereof, the portion
of the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
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(17) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(18) if the principal of, any premium or Interest on or any
Additional Amounts with respect to any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election, and
any deletions from or modifications of or additions to the terms of
this Indenture to provide for or to facilitate the issuance of
Securities denominated or payable, at the election of the Company or a
Holder thereof or otherwise, in a Foreign Currency;
(19) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more Currencies, commodities,
equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such amounts shall be determined and
paid or payable;
(20) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(21) if either or both of Section 402(2) relating to
defeasance or Section 402(3) relating to covenant defeasance shall be
applicable to the Securities of such series, or any covenants in
addition to those specified in Section 402(3) relating to the
Securities of such series shall be subject to covenant defeasance, and
any deletions from, or modifications or additions to, the provisions of
Article Four in respect of the Securities of such series;
(22) if any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(23) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
(24) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent, Conversion Agent or Authenticating Agent with
respect to such Securities;
(25) the Change in Control Purchase Price, if applicable;
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(26) the name of the applicable Trust (which shall distinguish
such statutory business trust from all other Trusts), if any, to which
the Securities of such series are to be deposited as assets and the
date of its Trust Agreement; and
(27) any other terms of such Securities and any deletions from
or modifications or additions to this Indenture in respect of such
Securities.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest,
or method of determining the rate of interest, if any, Maturity, and the date
from which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental indenture.
All Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Company, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer, one of its
Assistant Treasurers or one of its Vice Presidents under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. Coupons shall be executed on behalf of the Company by the
Treasurer, one of its Vice Presidents or any Assistant Treasurer of the Company.
The signature
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of any of these officers on the Securities or any Coupons appertaining thereto
may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for authentication
and, provided that the Board Resolution and Officers' Certificate or
supplemental indenture or indentures with respect to such Securities referred to
in Section 301 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with
the Company Order and subject to the provisions hereof and of such Securities
shall authenticate and deliver such Securities. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities and any Coupons appertaining thereto, the Trustee
shall be entitled to receive, and (subject to Sections 315(a) through 315(d) of
the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the
provisions of this Indenture;
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining thereto,
have been complied with and that such Securities, and Coupons, when
completed by appropriate insertions, executed under the Company's
corporate seal and attested by duly authorized officers of the Company,
delivered by duly authorized officers of the Company to the Trustee for
authentication pursuant to this Indenture, and authenticated and
delivered by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) and will entitle the Holders thereof to
the benefits of this Indenture; such Opinion of Counsel need express no
opinion as to the availability of equitable remedies;
(c) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and Coupons, if any, have
been complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
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(2) an Officers' Certificate stating that, to the best
knowledge of the Persons executing such certificate, no event which is,
or after notice or lapse of time or both would become, an Event of
Default with respect to any of the Securities shall have occurred and
be continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any Bearer Security in global form shall be dated as of
the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 202 or 611 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306 or 307, the Trustee
shall not authenticate and deliver any Bearer Security unless all Coupons
appertaining thereto then matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in of pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Company executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall
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cause definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities of the same series and containing terms and
provisions that are identical to those of any temporary Securities, such
temporary Securities shall be exchangeable for such definitive Securities upon
surrender of such temporary Securities at an Office or Agency for such
Securities, without charge to any Holder thereof. Upon surrender for
cancellation of any one or more temporary Securities (accompanied by any
unmatured Coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations of the same series
and containing identical terms and provisions; provided, however, that no
definitive Bearer Security, except as provided in or pursuant to this Indenture,
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in or pursuant to this Indenture. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Company shall have the right to remove and replace
from time to time the Security Registrar for any series of Securities; provided
that no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Securities shall have been
appointed by the Company and shall have accepted such appointment by the
Company. In the event that the Trustee shall not be or shall cease to be
Security Registrar with respect to a series of Securities, it shall have the
right to examine the Security Register for such series at all reasonable times.
There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
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<PAGE> 35
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to any Paying
Agent any such missing Coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such Bearer Security, such Coupon shall be returned to
the Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be payable only
to the Holder of such Coupon when due in accordance with the provisions of this
Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such series
may be exchanged for Bearer Securities upon such terms and conditions as may be
provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a
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<PAGE> 36
successor depository is not appointed by the Company within 90 days of the date
the Company is so informed in writing, (ii) the Company executes and delivers to
the Trustee a Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing with
respect to the Securities. If the beneficial owners of interests in a global
Security are entitled to exchange such interests for definitive Securities as
the result of an event described in clause (i), (ii) or (iii) of the preceding
sentence, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in such form and denominations as
are required by or pursuant to this Indenture, and of the same series,
containing identical terms and in aggregate principal amount equal to the
principal amount of such global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such global
Security shall be surrendered from time to time by the U.S. Depository or such
other Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S.
Depository or such other Depository, as the case may be (which instructions
shall be in writing but need not be contained in or accompanied by an Officers'
Certificate or be accompanied by an Opinion of Counsel), as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or in part, for definitive
Securities as described above without charge. The Trustee shall authenticate and
make available for delivery, in exchange for each portion of such surrendered
global Security, a like aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged, which (unless such Securities are not
issuable both as Bearer Securities and as Registered Securities, in which case
the definitive Securities exchanged for the global Security shall be issuable
only in the form in which the Securities are issuable, as provided in or
pursuant to this Indenture) shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof, but subject to the satisfaction of any certification
or other requirements to the issuance of Bearer Securities; provided, however,
that no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities of the same series to be
redeemed and ending on the relevant Redemption Date; and provided, further, that
(unless otherwise provided in or pursuant to this Indenture) no Bearer Security
delivered in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following any
such exchange in part, such global Security shall be returned by the Trustee to
such Depository or the U.S. Depository, as the case may be, or such other
Depository or U.S. Depository referred to above in accordance with the
instructions of the Company referred to above. If a Registered Security is
issued in exchange for any portion of a global Security after the close of
business at the Office or Agency for such Security where such exchange occurs on
or after (i) any Regular Record Date for such Security and before the opening of
business at such Office or Agency on the next Interest Payment Date, or (ii) any
Special Record Date for such Security and before the opening of business at such
Office or Agency on the related proposed date for payment of interest or
Defaulted Interest, as the case may be, interest shall not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Registered Security, but shall be payable on such Interest
Payment Date or proposed date for payment, as the case may be, only to the
Person to whom interest in respect of such portion of such global Security shall
be payable in accordance with the provisions of this Indenture.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of the selection for redemption of Securities of like tenor and
the same series under Section 1103 and ending at the close of business on the
day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons. if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or Coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or Coupon has been acquired by a
protected purchaser. the Company shall execute and, upon Company Request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons
not destroyed, lost or stolen, a new
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Security of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with Coupons
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
principal of, any premium or interest on or any Additional Amounts with respect
to any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an Office or Agency for such Securities located outside the
United States and, unless otherwise provided in or pursuant to this Indenture,
any interest on Bearer Securities and any Additional Amounts with respect to
such interest shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 306, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section 306 in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains shall constitute a separate obligation of the Company, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and the
Coupons, if any, duly issued hereunder.
The provisions of this Section 306, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts; Rights
to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duty provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise provided
in or pursuant to this Indenture, in case a Bearer Security is surrendered in
exchange for a Registered Security after the close of business at an Office or
Agency for such Security on any Regular Record Date therefor and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date therefor, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date and interest shall not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but shall
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be payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on such Registered Security and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when so deposited to be
held in trust for the benefit of the Person entitled to such Defaulted
Interest as in this Clause provided. Thereupon, the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to the
Holder of such Registered Security (or a Predecessor Security thereof)
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company cause a
similar notice to be published at least once in an Authorized Newspaper
of general circulation in the Borough of Manhattan, The City of New
York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered
Security after the close of business at such Office or Agency on any
Special Record Date and before the opening of business at such Office
or Agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the Coupon
relating to such Defaulted Interest and Defaulted Interest shall not be
payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but shall be
payable
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only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series, at the option of the Company, interest on
Registered Securities that bear interest may be paid by mailing a check to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by transfer to an account maintained by the payee with a
bank located in the United States.
Subject to the foregoing provisions of this Section 307 and Section
305, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
If any convertible or exchangeable Security of any series is converted
or exchanged after any Regular Record Date and on or prior to the next
succeeding Interest Payment Date (other than any Security with respect to which
the Stated Maturity Date is prior to such Interest Payment Date), interest that
is due on such Interest Payment Date shall be payable on such Interest Payment
Date notwithstanding such conversion or exchange, and such interest (whether or
not punctually paid or duly provided for ) shall be paid to the Person in whose
name that Security is registered at the close of business on such Regular Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security that is converted or exchanged, interest
shall not be payable if the Regular Record Date is after the date of conversion
or exchange of such Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall
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be overdue, and neither the Company, nor the Trustee or any agent of the Company
or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Company, the Trustee, any
Paying Agent, any Conversion Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such purpose,
shall be cancelled promptly by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 309, except as expressly
permitted by or pursuant to this Indenture. All cancelled Securities and Coupons
held by the Trustee shall be destroyed by the Trustee, unless by a Company Order
the Company directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in any
Security, interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order and any Coupons appertaining thereto, and the
Trustee, on receipt of a Company Order, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when:
(1) either:
(a) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of
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such series and maturing after such exchange whose surrender is not
required or has been waived as provided in Section 305, (ii) Securities
and Coupons of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306, (iii)
Coupons appertaining to Securities of such series called for redemption
and maturing after the relevant Redemption Date whose surrender has
been waived as provided in Section 1107, and (iv) Securities and
Coupons of such series for whose payment money in the applicable
Currency has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of (i) or
(ii) below, any Coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation:
(i) have become due and payable; or
(ii) will become due and payable at their Stated
Maturity within one year; or
(iii) if redeemable at the option of the Company, are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company;
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds in trust for
such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation, including
the principal of, any premium and interest on, and any Additional
Amounts with respect to such Securities and any Coupons appertaining
thereto, to the date of such deposit (in the case of Securities which
have become due and payable) or to the Maturity thereof, as the case
may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding
Securities of such series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
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Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 606 and, if money shall have been deposited with the
Trustee pursuant to subclause (b) of clause (1) of this Section 401, the
obligations of the Company and the Trustee with respect to the Securities of
such series under Sections 305, 306, 403, 1002, 1003 and Article Twelve, with
respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to subclause (b) of
clause (1) of this Section 401), and, unless otherwise provided pursuant to
Section 301 with respect to the Securities of such series, any rights to convert
or exchange the Securities of such series into other securities or rights in
accordance with their terms, shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) If, pursuant to Section 301, either or both of (i)
defeasance of the Securities of or within a series under clause (2) of
this Section 402, or (ii) covenant defeasance of the Securities of or
within a series under clause (3) of this Section 402 shall be
applicable with respect to the Securities of such series, then such
provisions, together with the other provisions of this Section 402
(with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to
such Securities and any Coupons appertaining thereto, and the Company
may at its option by Board Resolution or Officers' Certificate, at any
time, with respect to such Securities and any Coupons appertaining
thereto, elect to have Section 402(2) or Section 402(3) be applied to
such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 402.
(2) Upon the Company's exercise of the above option applicable
to this Section 402(2) with respect to any Securities of or within a
series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any Coupons
appertaining thereto on the date the conditions set forth in clause (4)
of this Section 402 are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any Coupons appertaining thereto, which
shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture
referred to in clauses (i) and (ii) below, and to have satisfied all of
its other obligations under such Securities and any Coupons
appertaining thereto and this Indenture insofar as such Securities and
any Coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities and any Coupons appertaining thereto to receive,
solely from the trust fund described in clause (4) of this Section 402
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and
Additional Amounts, if any, with respect to, such Securities and any
Coupons appertaining thereto when such payments are due, and any rights
of such Holder to convert or exchange such Securities
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into Common Stock or other Securities, (ii) the obligations of the
Company and the Trustee with respect to such Securities under Sections
305, 306, 1002 and 1003, with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1004
(but only to the extent that the Additional Amounts payable with
respect to such Securities exceed the amount deposited in respect of
such Additional Amounts pursuant to Section 402(4)(a) below), (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder
and (iv) this Section 402. The Company may exercise its option under
this Section 402(2) notwithstanding the prior exercise of its option
under clause (3) of this Section 402 with respect to such Securities
and any Coupons appertaining thereto.
(3) Upon the Company's exercise of the above option applicable
to this Section 402(3) with respect to any Securities of or within a
series, the Company shall, to the extent specified pursuant to Section
301, be released from its obligations in respect of any covenant
applicable to such Securities, with respect to such Outstanding
Securities and any Coupons appertaining thereto on and after the date
the conditions set forth in clause (4) of this Section 402 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and
any Coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding
Securities and any Coupons appertaining thereto, the Company may omit
to comply with, and shall have no liability in respect of, any term,
condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any
other provision herein or in any other document and such omission to
comply shall not constitute a default or an Event of Default under
Section 501(4) or 501(6) or otherwise, as the case may be, but, except
as specified above, the remainder of this Indenture and such Securities
and Coupons appertaining thereto shall be unaffected thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 402 to any Outstanding Securities of
or within a series and any Coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 607 who shall agree to
comply with the provisions of this Section 402 applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities and any Coupons appertaining thereto:
(1) an amount in Dollars or in such Foreign
Currency in which such Securities and any Coupons
appertaining thereto are then specified as payable at
Stated Maturity; or
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(2) Government Obligations applicable to
such Securities and Coupons appertaining thereto
(determined on the basis of the Currency in which
such Securities and Coupons appertaining thereto are
then specified as payable at Stated Maturity) which
through the scheduled payment of principal and
interest in respect thereof in accordance with their
terms will provide, not later than one day before the
due date of any payment of principal of and any
premium, interest and Additional Amounts on such
Securities and any Coupons appertaining thereto,
money in an amount; or
(3) a combination thereof;
in any case, in an amount, sufficient, without
consideration of any reinvestment of such principal
and interest, in the opinion of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the
principal of and any premium, interest and Additional
Amounts on such Outstanding Securities and any
Coupons appertaining thereto on the Stated Maturity
of such principal or installment of principal or
interest on the day on which such payments are due
and payable in accordance with the terms of this
Indenture and of such Securities and any Coupons
appertaining thereto.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default
under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is
bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Securities and any Coupons appertaining
thereto shall have occurred and be continuing on the date of
such deposit and, with respect to defeasance only, at any time
during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(d) In the case of an election under clause (2) of
this Section 402, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue Service a letter ruling, or
there has been published by the Internal Revenue Service a
Revenue Ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
defeasance had not occurred.
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(e) In the case of an election under clause (3) of
this Section 402, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders
of such Outstanding Securities and any Coupons appertaining
thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance
and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance or
covenant defeasance under clause (2) or (3) of this Section
402 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this
Section 402(4), such defeasance or covenant defeasance shall
be effected in compliance with any additional or substitute
terms, conditions or limitations which may be imposed on the
Company in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 402(5) and Section 403, the "Trustee")
pursuant to clause (4) of Section 402 in respect of any Outstanding
Securities of any series and any Coupons appertaining thereto shall be
held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any Coupons appertaining thereto and
this Indenture, to the payment, either directly or through any Paying
Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any
Coupons appertaining thereto of all sums due and to become due thereon
in respect of principal of and any premium, interest and Additional
Amounts, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of and any premium and interest on, and any Additional
Amounts with respect to, such Security as the same becomes due out of the
proceeds yielded by converting (from time to time as specified below in the case
of any such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on (x) in the case of payments made
pursuant to clause (a) above, the
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applicable market exchange rate for such Currency in effect on the second
Business Day prior to each payment date, or (y) with respect to a Conversion
Event, the applicable market exchange rate for such Foreign Currency in effect
(as nearly as feasible) at the time of the Conversion Event. Unless otherwise
provided pursuant to Section 301, the right, if any, to extend an interest
payment period shall terminate upon defeasance or covenant defeasance, as the
case may be.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in clause (4) of this Section 402 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to Section
401 or 402 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, interest and Additional Amounts for whose payment
such money has or Government Obligations have been deposited with or received by
the Trustee; but such money and Government Obligations need not be segregated
from other funds except to the extent required by law.
Section 404. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or other wise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to this Article shall be revived and reinstated as though no
deposit has occurred pursuant to this Article with respect to such Securities,
until such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to this Article with respect to such Securities in
accordance with this Article; provided, however, that if the Company makes any
payment of principal of or any premium or interest on or Additional Amounts with
respect to any such Security following reinstatement of its obligations, the
Company shall be subrogated to the rights (if any) of the Holders of such
Securities to receive such payment from the money so held in trust.
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ARTICLE 5.
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such Series pursuant to this Indenture:
(1) failure to pay any interest on or any Additional Amounts
payable in respect of any Security of such series when such interest
becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) failure to pay the principal of or any premium on any
Security of such series when it becomes due and payable at either its
Maturity or, if applicable, at 12:00 noon, New York City time, on the
Business Day following the Change in Control Purchase Date; or
(3) if applicable, failure by the Company to deliver the
required securities or other rights upon an appropriate conversion or
exchange election by Holders of the Securities or the related Preferred
Securities; or
(4) failure to perform or the breach, of any covenant or
warranty of the Company in this Indenture or the Securities (other than
a covenant or warranty a default in the performance or the breach of
which is elsewhere in this Section 501 specifically dealt with or which
has been expressly included in this Indenture solely for the benefit of
a series of Securities other than such series), and continuance of such
failure or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice
specifying such failure or breach and requiring it to be remedied and
stating that such notice is a `Notice of Default' hereunder; or
(5) default in the deposit of any sinking fund payment when
and as due by the terms of a Security of such series; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the
Company or any Subsidiary in an involuntary proceeding under
any applicable bankruptcy, insolvency, reorganization or other
similar law and such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; or
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(b) a decree or order adjudging the Company or any
Subsidiary to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the
Company or any Subsidiary and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive
days; or
(c) a final and non-appealable order appointing a
custodian, receiver, liquidator, assignee, trustee or other
similar official of the Company or any Subsidiary or of any
substantial pare of the property of the Company or any
Subsidiary, as the case may be, or ordering the winding up or
liquidation of the affairs of the Company or any Subsidiary;
or
(7) the commencement by the Company or any Subsidiary of a
voluntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of a voluntary proceeding
seeking to be adjudicated insolvent or the consent by the Company or
any Subsidiary to the entry of a decree or order for relief in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
insolvency proceedings against it, or the filing by the Company or any
Subsidiary of a petition or answer or consent seeking reorganization or
relief under any applicable law, or the consent by the Company or any
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee,
trustee or similar official of the Company or any Subsidiary or any
substantial part of the property of the Company or any Subsidiary or
the making by the Company or any Subsidiary of an assignment for the
benefit of creditors, or the taking of corporate action by the Company
or any Subsidiary in furtherance of any such action; or
(8) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity: Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (6) or (7)
of Section 501) occurs and is continuing, then the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of such series
may declare the principal of all the Securities of such series, or such lesser
amount as may be provided for in the Securities of such series, to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable; provided that in the
case of a series of Securities then held by a Trust, if upon an Event of Default
with respect to the Securities of that series the Trustee has, or the Holders of
not less than 25% in principal amount of the Outstanding Securities of such
series have, failed to declare the principal of all the Securities of such
series to be due and payable immediately, the holders of not less than 25% in
aggregate liquidation amount of the outstanding Preferred Securities of that
Trust shall have such right by a notice in writing to the Company and to the
Trustee.
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If an Event of Default specified in clause (6) or (7) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after Securities of any series have been accelerated and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
(subject to, in the case of any series of Securities held as assets of a Trust
and with respect to which a Security Exchange has not theretofore occurred, such
consent of the holders of the Preferred Securities and the common securities of
such Trust as may be required under the Trust Agreement of such Trust), by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
of money sufficient to pay:
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such
series and any Coupon appertaining thereto;
(b) the principal of and any premium on any
Securities of such series which have become due otherwise than
by such declaration of acceleration and interest thereon and
any Additional Amounts with respect thereto at the rate or
rates borne by or provided for in such Securities;
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue
installments of any interest and Additional Amounts at the
rate or rates borne by or provided for in such Securities; and
(d) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section
606; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of
such series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) there is a failure to pay any installment of interest on
or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall
have become due and payable and such default continues for a period of
30 days; or
(2) there is a failure to pay the principal of or any premium
on any Security at its Maturity;
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities and any Coupons appertaining thereto, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or such Securities or in aid of the exercise of any power granted
herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any
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overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of the principal and any premium, interest and Additional Amounts owing
and unpaid in respect of the Securities and any Coupons appertaining
thereto and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents or counsel) and of the Holders of
Securities or any Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security, or any Coupon in any such proceeding; provided, however, that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' committee or
other similar committee.
Section 505. Trustee May Enforce Claim without Possession of Securities
or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon
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presentation of the Securities or Coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and any Coupons for principal and any premium, interest
and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on such
Securities and Coupons for principal and any premium, interest and
Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
Except as provided in Section 508 or 516, no Holder of any Security of
any series or any Coupons appertaining thereto or holder of Preferred Securities
of the Trust, if any, that is the Holder of Securities of that series, shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee or for any
other remedy hereunder, unless:
(1) such Holder or holder of Preferred Securities has
previously given written notice to the Trustee of a continuing Event of
Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series or the holders of not less
than 25% in aggregate liquidation amount of such outstanding Preferred
Securities shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders of such Outstanding Securities of
such series or the holder or holders of such outstanding Preferred
Securities have offered to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series or the holders of a majority in aggregate liquidation amount of
such outstanding Preferred Securities;
it being understood and intended that no one or more of such Holders of such
Outstanding Securities of such series or the holder or holders of such
outstanding Preferred Securities shall
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have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture or any Security to affect, disturb or prejudice the
rights of any other such Holders or Holders of Securities of any other series or
holder or holders of Preferred Securities of another Trust, or to obtain or to
seek to obtain priority or preference over any other Holders of such Outstanding
Securities of such series or the holder or holders of such outstanding Preferred
Securities or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders or
holders.
Section 508. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 305 and 307) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due, or in the case of a Change in Control, or as to
any Change in Control Purchase Notice given timely, on the Change in Control
Purchase Date) and to convert or exchange such Security in accordance with its
terms, if applicable, and to institute suit for the enforcement of any such
payment or conversion or exchange, and such right shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is intended
to be exclusive of any other right or remedy, and every right and remedy, to the
extent permitted by law, shall be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to any Holder of a Security or a Coupon may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be,
Section 512. Control by Holders of Securities.
Subject to Section 601(5), the Holders of a majority in principal
amount of the Outstanding Securities of any series or, if that series of
Securities is held by a Trust, the holders of a majority in aggregate
liquidation amount of the Preferred Securities of that Trust, shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series and any Coupons
appertaining thereto, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of any series;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) such direction is not unduly prejudicial to the rights of
the other Holders of Securities of such series not joining in such
action.
Section 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series, or, if that series
of Securities is held by a Trust, the holders of a majority in aggregate
liquidation amount of the Preferred Securities of that Trust, on behalf of the
Holders of all the Securities of such series and any Coupons appertaining
thereto, may waive any past or prospective default hereunder with respect to
such series and its consequences, except a default:
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security of
such series or any Coupons appertaining thereto; or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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Section 514. Waiver of Stay or Extension Laws.
The Company covenants that (to the extent that it may lawfully do so)
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company expressly waives (to the extent
that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claim or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or,
if a series of Securities is held by a Trust, the holders of more than 10%
aggregate liquidation amount of the Preferred Securities of that Trust, or to
any suit instituted by any Holder or holder of Preferred Securities, if any, for
the enforcement of the payment of the principal of or any premium or interest on
or Additional Amounts with respect to any Security on or after the respective
Stated Maturities expressed in such Security or pursuant to Section 516 (or, in
the case of redemption, on or after the Redemption Date, in the case of
repayment, on or after the date for repayment and, in the case of Change of
Control, on or after the date for payment of the Change of Control Purchase
Price).
Section 516. Direct Action Right of Holders of Trust Preferred
Securities.
If an Event of Default has occurred and is continuing and is
attributable either to (a) the failure of the Company to pay the principal of or
any premium or interest on or Additional Amounts with respect to the Securities
on the due date therefor or (b) the failure by the Company to deliver the
required securities or other property upon an appropriate conversion or exchange
right election, and an event of default has occurred and is continuing under the
applicable Trust Agreement, a holder of the related Preferred Securities, in
lieu of any action that may otherwise be taken hereunder as a Holder of
Securities, may institute a legal proceeding directly against the Company for
enforcement of payment to such holder of the principal of or any premium or
interest on or Additional Amounts with respect to such Securities having a
principal amount equal to the liquidation amount of the Preferred Securities
held by such holder or for enforcement of such conversion or exchange rights, as
the case may be (a "Direct Action"). Notwithstanding anything contained herein
to the contrary, the Company may not amend this Indenture to remove the
foregoing right to bring a Direct Action without the prior written
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consent of the holders of all of the Preferred Securities outstanding.
Notwithstanding any payments made to a holder of Preferred Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of and any premium or interest on or Additional Amounts
with respect to the related Securities, and the Company shall be subrogated to
the rights of the holder of such Preferred Securities with respect to payments
on the Preferred Securities to the extent of any payments made by the Company to
such holder in any Direct Action.
ARTICLE 6.
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, security, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company Order
(in each case, other than delivery of any Security, together with any
Coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 303 which shall be sufficiently evidenced
as provided therein) and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice,
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request, direction, consent, order, bond, security, coupon or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine, during
business hours and upon reasonable notice, the books, records and
promises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be charged with knowledge of any
default (as defined in Section 602) or Event of Default with respect to
the Securities of any series for which it is acting as Trustee unless
either (1) a Responsible Officer of the Trustee assigned to the
Corporate Trust Department of the Trustee (or any successor division or
department of the Trustee) shall have actual knowledge of such default
or Event of Default or (2) written notice of such default or Event of
Default shall have been given to the Trustee by the Company or any
other obligor on such Securities or by any Holder of such Securities;
and
(9) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts with respect to, any Security of
such series, the Trustee shall be protected in withholding such notice if and so
long as a committee of Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the best interest of the
Holders of Securities and Coupons of such series. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
Section 603. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons.
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Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of the Securities or the proceeds thereof.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent, any Security Registrar or any other Person that may be an agent of the
Trustee or the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities or Coupons and, subject to Sections 310(b) and
311 of the Trust Indenture Act, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Conversion Agent, Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of
any of their powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section 606, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to particular Securities or
any Coupons appertaining thereto.
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Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
The Company's obligations under this Section 606 and any lien hereunder
shall survive the resignation or removal of any Trustee, the discharge of the
Company's obligations pursuant to Article Four of this Indenture and the
termination of this Indenture.
Section 607. Corporate Trustee Require; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation,
organized and doing business under the laws of the United States of America, any
state thereof or the District of Columbia, eligible under Section 310(a)(1) of
the Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Indenture Act and that has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000 subject to supervision or examination by Federal or state authority.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 607, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article Six.
Section 608. Resignation and Removal, Appointment of Successor.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 609 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with the
obligations imposed upon it under Section 310(b) of the Trust
Indenture Act with respect to Securities of any series after
written request therefor by the Company or any Holder of a
Security of such series who has been a bona fide Holder of a
Security of such series for at least six months, or
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(b) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after written request
therefor by the Company or any such Holder; or
(c) the Trustee shall become incapable of acting or
shall be adjudged bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, (i) the Company, by or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of such
series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder
of a Security who has been a bona fide Holder of a Security of such series for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities of such series and the appointment of a successor
Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section
609. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act
of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable
requirements of Section 609, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted
appointment in the manner required by Section 609, any Holder of a
Security who has been a bona fide Holder of a Security of such series
for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(6) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities
of any series by mailing written notice of such event by first-class
mail, postage prepaid, to the Holders of Registered Securities, if any,
of such series as their names and addresses appear in the Security
Register and, if Securities of such series arc issued as Bearer
Securities, by publishing notice of such event once in an Authorized
Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its
Corporate Trust Office.
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Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company and the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, trusts and duties
hereunder of the retiring Trustee; but, on the request of the Company
or such successor Trustee, such retiring Trustee, upon payment of its
charges, shall execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
Trustee and, subject to Section 1003, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and such successor Trustee shall execute
and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, such successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
Trustees co-trustees of the same trust, that each such Trustee shall be
trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and
that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other
Trustee hereunder, and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein, such
retiring Trustee shall have no further responsibility for the exercise
of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates other than as hereinafter expressly set
forth, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or such successor Trustee, such
retiring Trustee, upon payment of its charges with respect to the
Securities of that or those series to which the appointment of such
successor relates and subject to Section 1003 shall duly assign,
transfer and deliver to such successor Trustee, to the extent
contemplated by such
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supplemental indenture, the property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates,
subject to its claim, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a
successor Trustee, the Company shall execute any and all instruments
for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in
paragraph (1) or (2) of this Section 609, as the case may be.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor
Person shall be qualified and eligible under this Article Six.
Section 610. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 611, it shall resign immediately in the manner and
with the effect specified in this Section 611.
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Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, provided such
Corporation shall be otherwise eligible under this Section 611, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 611, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall (i) mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Registered Securities, if any, of the series with respect to which
such Authenticating Agent shall serve, as their names and addresses appear in
the Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 611.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section 611. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section 611, the Securities of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
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THE CHASE MANHATTAN BANK,
As Trustee
By
--------------------------------------
As Authenticating Agent
By
--------------------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section 611 an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
ARTICLE 7.
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee:
(1) semiannually with respect to Securities of each series not
later than March 15 and September 15 of the year or upon such other
dates as are set forth in or pursuant to the Board Resolution,
Officers' Certificate or indenture supplemental hereto authorizing such
series, a list, in each case in such form as the Trustee may reasonably
require, of the names and addresses of Holders as of the applicable
date; and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent, any
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Conversion Agent or any Security Registrar shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with Section 312(c) of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with
May 15, 2001, if required by Section 313(a) of the Trust Indenture Act,
the Trustee shall transmit, pursuant to Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15 with respect to
any of the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding May 15 and the
date of this Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section 703 shall be transmitted
in the manner and to the Persons required by Sections 313(c) and 313(d)
of the Trust Indenture Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a Security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company, with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the
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Company pursuant to paragraphs (1) and (2) of this Section 704 as may
be required by rules and regulations prescribed from time to time by
the Commission.
ARTICLE 8.
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other Person
or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of the property of the Company as an entirety or substantially as an entirety,
to any other Person (whether or not affiliated with the Company); provided,
however, that:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to any Person, the
entity formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company as an entirety or
substantially as an entirety shall be a Corporation organized and
existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall expressly assume, by an
indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed by the successor Person and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, any premium and interest on
and any Additional Amounts with respect to all the Securities and the
performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing, including any default pursuant to the Holder's Change of
Control Purchase Option set forth in Article Fifteen; and
(3) either the Company or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such satisfaction, such supplemental indenture comply
with this Article Eight and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. Successor Person Substituted for Company.
Upon any consolidation by the Company with or merger of the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety to any Person in accordance
with Section 801, the successor Person
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formed by such consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be released from all obligations and covenants under this Indenture, the
Securities and the Coupons.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (as shall be specified
in such supplemental indenture or indentures) or to surrender any right
or power herein conferred upon the Company; or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of, any premium or interest on or any Additional Amounts with
respect to Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
exchanged for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form,
provided any such action shall not adversely affect the interests of
the Holders of Securities of any series or any Coupons appertaining
them to in any material respect; or
(4) to establish the form or terms of Securities of any series
and any Coupons appertaining them to as permitted by Sections 201 and
301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 609; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which
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shall not adversely affect the interests of the Holders of Securities
of any series then Outstanding or any Coupons appertaining thereto in
any material respect; or
(7) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or
purposes of issue, authentication and delivery of Securities, as herein
set forth; or
(8) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such
supplemental indenture); or
(9) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Article Four, provided that any such action shall not adversely affect
the interests of any Holder of a Security of such series and any
Coupons appertaining thereto or any other Security or Coupon in any
material respect; or
(10) to secure the Securities; or
(11) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series; or
(12) to amend or supplement any provision contained herein or
in any supplemental indenture, provided that no such amendment or
supplement shall materially adversely affect the interests of the
Holders of any Securities then Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture (and, in the case of any series of Securities held as
assets of a Trust, such consent of holders of the Preferred Securities and the
common securities of such Trust as may be required under the Trust Agreement of
such Trust), by Act of said Holders delivered to the Company and the Trustee,
the Company (when authorized by or pursuant to a Company's Board Resolution),
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture or of the Securities of such series; provided, however, that no such
supplemental indenture, without the consent of the Holder of each Outstanding
Security affected thereby, shall:
(1) except as permitted by the terms of the Securities, change
the Stated Maturity of the principal of, or any premium or installment
of interest on or any Additional Amounts with respect to, any Security,
or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts
with respect thereto, or any premium payable upon the redemption
thereof or otherwise, or change the duration of the maximum consecutive
period, if any, that payments of interest on such Securities may be
deferred, if applicable, or change the obligation of the Company to pay
Additional Amounts pursuant to Section 1004 (except as contemplated by
Section 801(l) and permitted by Section 901(l)), or reduce the amount
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of the principal of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, change the redemption, conversion
or exchange provisions or adversely affect the right of repayment at
the option of any Holder as contemplated by Article Twelve, or change
the subordination provisions that apply to the terms of such Securities
in a manner adverse to Holders, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date or, in the case of repayment at the option
of the Holder, on or after the date for repayment or in the case of
change in control, after the Change in Control Purchase Date); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1404 for quorum or voting; or
(3) modify any of the provisions of this Section 902, Section
513 or Section 1008, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article Nine or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive (in addition to those documents required by Section 102),
and (subject to Section 315 of the Trust Indenture Act) shall be fully protected
in relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article Nine may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE 10.
COVENANTS
Section 1001. Payment of Principal, any Premium and Interest.
(1) The Company shall pay the principal of, any premium and
interest on (including interest accruing during any extension period
and/or on or after the filing of a petition in bankruptcy or
reorganization relating to the Company, whether or not a claim for
post-filing interest is allowed in such proceeding) and any Additional
Amounts with respect to the Securities on or prior to the dates and in
the manner provided in such Securities or pursuant to this Indenture.
An installment of principal, and any premium, interest or Additional
Amounts shall be considered paid on the applicable due date if on such
date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to pay all of such installment then due.
With respect to any Security, the Company shall pay interest on overdue
principal and interest on overdue installments of interest (including
interest accruing during any extension period and/or on or after the
filing of a petition in bankruptcy or reorganization relating to the
Company, whether or not a claim for post-filing interest is allowed in
such proceeding), or Additional Amounts to the extent lawful, at the
rate accruing on such Security, compounded with the same frequency as
interest is payable on such Securities. Interest on overdue interest
shall accrue from the date such amounts become overdue.
(2) Notwithstanding the provisions of Section 1001 (1) or any
other provision herein to the contrary, the Company shall have the
right, as provided in an Officer's Certificate or supplemental
indenture issued pursuant to Article Nine, in its sole and
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absolute discretion at any time and from time to time while the
Securities of any series are outstanding, so long as no Event of
Default with respect to such series of Securities has occurred and is
continuing, to defer payments of interest by extending the interest
payment period for such series of Securities for the maximum
consecutive period, if any, specified for such series of Securities,
provided that such extension period must end on an Interest Payment
Date and shall not extend beyond the Stated Maturity or Redemption Date
of any Security of such series, and provided further that at the end of
each extension period the Company shall pay all interest then accrued
and unpaid (together with interest thereon to the extent permitted by
applicable law at the rate accruing on such Securities). Prior to the
termination of an extension period, the Company may shorten or may
further extend the interest payment period for such series of
Securities, provided that such extension period together with all such
previous and further extensions may not exceed the maximum consecutive
period specified for such series of Securities, end on a date other
than an Interest Payment Date or extend beyond the Stated Maturity or
Redemption Date of any Security of such series. The Company shall give
the Trustee notice of the Company's election to begin an extension
period for any series of Securities and any shortening or extension
thereof at least five Business Days prior to: (i) the date notice of
payment of interest on such Securities is required to be given to any
national securities exchange on which the related Preferred Securities,
if any, or Securities are then listed or other applicable
self-regulatory organization, or (ii) the date of the notice of the
record or payment date of the related distribution on the Preferred
Securities issued by the Trust which is the Holder of the Securities of
such series, but in any event not less than five Business Days prior to
the Record Date fixed by the Company for the payment of such interest.
The Company shall give or cause the Trustee to give notice (a form of
which shall be provided by the Company to the Trustee) of the Company's
election to begin an extension period to the Holders by first class
mail, postage prepaid.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series may be presented and surrendered in
the event of a conversion or exchange, and where notices and demands to or upon
the Company in respect of the Securities of such series relating thereto and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company shall maintain, subject to any laws or regulations
applicable thereto, an Office or Agency in a Place of Payment for such series
which is located outside the United States where Securities of such series and
any Coupons appertaining thereto may be presented and surrendered for payment;
provided, however, that if the Securities of such series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company shall maintain a Paying Agent
and a Conversion Agent, if applicable, in London, Luxembourg or any other
required city located outside the United States, as the case may be, so long as
the Securities of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such Office or
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Agency. If at any time the Company shall fail to maintain any such required
Office or Agency or shall fail to furnish the Trustee with the addresses
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may only be
presented and surrendered for payment at the place specified for the purpose
with respect to such Securities as provided in or pursuant to this Indenture,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Corporate Trust Office of the Trustee as the Office or Agency of
the Company in the Borough of Manhattan, The City of New York for such purpose.
The Company may subsequently appoint a different Office or Agency in the Borough
of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one, exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which
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the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal of or any premium, interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent a sum (in the Currency
or Currencies described in the preceding paragraph) sufficient to pay the
principal of or any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 1003, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
of, any premium or interest on or any Additional Amounts with respect
to Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of such series) in the making of
any payment of principal of, any premium or interest on or any
Additional Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose pay, or by
Company Order direct a Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after such principal
or any such premium or interest or any such Additional Amount shall have become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security or any
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Coupon appertaining thereto shall thereafter, as an unsecured general creditor,
look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing nor shall it be later than
two years after such principal and any premium or interest or Additional Amounts
shall have become due and payable, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts, if applicable, in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent or Paying Agents, if
other than the Trustee, an Officers' Certificate instructing the Trustee and
such Paying Agent or Paying Agents whether such payment of principal of and
premium, if any, or interest on the Securities of such series shall be made to
Holders of Securities of such series or the Coupons appertaining thereto who are
United States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of such
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or Coupons, and the Company
agrees to pay to the Trustee or such Paying Agent the Additional Amounts
required by the terms of such Securities. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section 1004.
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Section 1005. No Restriction on Indebtedness or Liens.
Nothing in this Indenture or in the Securities shall in any way
restrict or prevent the Company or any Subsidiary from issuing, assuming,
guaranteeing or otherwise incurring or securing any Indebtedness, or otherwise
granting any Liens in respect thereof.
For purposes of this Section 1005, "Lien" shall mean, with respect to
any asset, any mortgage, lien, pledge, security interest or encumbrances of any
kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law.
Section 1006. Corporate Existence.
Subject to Articles Eight and Fifteen, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and that of each Subsidiary and their respective rights
(charter and statutory) and franchises; provided, however, that the foregoing
shall not obligate the Company or any Subsidiary to preserve any such right or
franchise if the Company or any Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of its business or the business of
such Subsidiary.
Section 1007. Payment of Expenses of Each Trust. The Company covenants
for the benefit of the Holders of each series of Securities owned by a Trust to
pay all of the obligations, costs and expenses of such Trust (other than
payments in respect of Trust Securities) in accordance with the provisions of
its Trust Agreement and to pay the taxes of such Trust in accordance with the
provisions of its Trust Agreement in order to permit such Trust to make
distributions on and redemptions of its Preferred Securities in accordance with
its Trust Agreement.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1001(2) or 1006 with respect
to the Securities of any series if before the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
of such series, by Act of such Holders, either shall waive such compliance in
such instance or generally shall have waived compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
Section 1009. Company Statement as to Compliance; Notice of Certain
Defaults.
(1) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not
be contained in or accompanied by an Officers' Certificate) signed by
the principal executive officer, the principal financial officer or the
principal accounting officer of the Company, stating that:
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(a) a review of the activities of the Company during
such year and of its performance under this Indenture has been
made under his or her supervision; and
(b) to the best of his or her knowledge, based on
such review, (i) the Company has complied with all the
conditions and covenants imposed on it under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such condition or covenant, specifying each
such default known to him or her and the nature and status
thereof, and (ii) no event has occurred and is continuing
which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and
the nature and status thereof.
(2) the Company shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default or
any Default.
ARTICLE 11.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article Eleven.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution or an Officers' Certificate. In case of any
redemption at the election of the Company of (a) less than all of the Securities
of any series or (b) all of the Securities of any series, with the same issue
date, interest rate or formula, Stated Maturity and other terms, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
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The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed;
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, and, if applicable, that interest thereon shall cease to
accrue on and after said date;
(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and any accrued interest and Additional
Amounts pertaining thereto;
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(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing Coupon or Coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee and any Paying Agent is
furnished;
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on the Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made;
(9) that the redemption is out of a sinking fund, if such is
the case;
(10) in the case of Securities of any series that are
convertible or exchangeable into other securities or rights, the
conversion or exchange price or rate, the date or dates on which or the
period or periods during which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence
or terminate and the place or places where such Securities may be
surrendered for conversion or exchange; and
(11) the CUSIP number or the Euroclear or the Clearstream
Luxembourg reference numbers of such Securities, if any (or any other
numbers used by a Depository to identify such Securities).
A notice of redemption mailed as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 1104, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 301 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the
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Redemption Price and accrued interest) such Securities shall cease to bear
interest and the Coupons for such interest appertaining to any Bearer Securities
so to be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said notice,
together with all Coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with any accrued interest and Additional Amounts to the
Redemption Date; provided, however, that, except as otherwise provided in or
pursuant to this Indenture or the Bearer Securities of such series, installments
of interest on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and surrender of Coupons
for such interest (at an Office or Agency located outside the United States
except as otherwise provided in Section 1002), and provided, further, that,
except as otherwise specified in or pursuant to this Indenture or the Registered
Securities of such series, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates therefor
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered. If a Security in global form is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depository
or other Depository for such Security in global form as shall be specified in
the Company Order
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with respect thereto to the Trustee, without service charge, a new Security in
global form in a denomination equal to and in exchange for the unredeemed
portion of the principal of the Security in global form so surrendered.
ARTICLE 12.
REPAYMENT AT THE OPTION OF HOLDERS
Section 1201. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1201, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE 13.
SECURITIES IN FOREIGN CURRENCIES
Section 1301. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Company may specify in a written
notice to the Trustee or, in the absence of such written notice, as the Trustee
may determine.
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ARTICLE 14.
MEETINGS OF HOLDERS OF SECURITIES
Section 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article Fourteen to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or
other Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1402. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to
be held at such time and at such place in the Borough of Manhattan, The
City of New York, or, if Securities of such series have been issued in
whole or in part as Bearer Securities, in London or in such place
outside the United States as the Trustee shall determine. Notice of
every meeting of Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given in the manner
provided in Section 106 not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(2) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of or made the first
publication of the notice of such meeting within 21 days after receipt
of such request (whichever shall be required pursuant to Section 106)
or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New
York, or, if Securities of such series are to be issued as Bearer
Securities, in London for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in clause (1) of
this Section 1402.
Section 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
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Section 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3% in
principal amount of the Outstanding Securities of a series, the Persons entitled
to vote 66-2/3% in principal amount of the Outstanding Securities of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1402(l), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of at least 66-2/3% in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other Act
which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section 1404 shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1405. Determination of Voting Rights, Conduct and Adjournment
of Meetings.
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of
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Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence
of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted
or required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in Section 104 or by
having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section
104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 1402(2), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount
of Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security
of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
Section 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
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meeting and showing that said notice was given as provided in Section 1402 and,
if applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE 15.
PURCHASE OF SECURITIES UPON CHANGE IN CONTROL
Section 1501. Purchase of Securities at Option of the Holder upon
Change in Control.
(1) If on or prior to Maturity, there shall have occurred a
Change in Control (as defined herein), the Securities shall be
purchased, at the option of the Holder thereof, by the Company at the
purchase price specified in the Securities (the "Change in Control
Purchase Price"), on the date that is 35 Business Days after the
occurrence of the Change in Control (the "Change in Control Purchase
Date"), subject to satisfaction by or on behalf of the Holder of the
requirements set forth in Section 1501(3).
A "Change in Control" shall be deemed to have occurred at such time as
any of the following events shall occur:
(a) Any person (for purposes of paragraph (a) of this
Section 1501(1) only, the term "person" shall mean a "person"
as defined in or for purposes of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act of 1934 (as defined herein), or
any successor provision to either of the foregoing, including
any "group" acting for the purposes of acquiring, holding or
disposing of Securities within the meaning of Rule 13D-5(b)(1)
under the Exchange Act of 1934), together with its Affiliates
and Associates (as defined herein), shall file or become
obligated to file a report under or in response to Schedule
13D or 14D-1 (or any successor schedule, form or report)
pursuant to the Exchange Act of 1934 disclosing that such
person has become the beneficial owner (as the term
"beneficial owner" is defined in Rule 13d-3 under the Exchange
Act of 1934, or any successor provision) of either (A) 50% or
more of the shares of Common Stock then outstanding or (B) 50%
or more of the voting power of the Voting Stock of the Company
then outstanding; provided, however, that for purposes of
paragraph (a) of this Section 1501(1), a person shall not be
deemed the beneficial owner of (1) any Securities tendered
pursuant to a tender offer or exchange offer made by or on
behalf of such person, or its Affiliates or Associates, until
such tendered Securities are accepted for purchase or exchange
thereunder, or (2) any Securities in respect of which
beneficial ownership by such person arises solely as a result
of a revocable proxy delivered in response to a proxy or
consent solicitation that is made pursuant to, and in
accordance with, the Exchange Act of 1934 and the applicable
rules and regulations thereunder and is not then reportable on
Schedule 13D (or any successor schedule, form or report) under
the Exchange Act of 1934;
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(b) There shall be consummated any sale, transfer,
lease or conveyance of all or substantially all of the
properties and assets of the Company to any other Corporation
or Corporations or other person or persons (other than a
Subsidiary of the Company);
(c) There shall be consummated any consolidation of
the Company with or merger of the Company with or into any
other Person (whether or not affiliated with the Company) in
which the Company is not the sole surviving or continuing
corporation or pursuant to which the shares of Common Stock
outstanding immediately prior to the consummation of such
consolidation or merger are converted into cash, securities or
other property, other than a consolidation or merger in which
the holders of shares of Common Stock receive, directly or
indirectly, (A) 75% or more of the common stock of the sole
surviving or continuing Corporation outstanding immediately
following the consummation of such consolidation or merger and
(B) securities representing 75% or more of the combined voting
power of the Voting Stock of the sole surviving or continuing
corporation outstanding immediately following the consummation
thereof of such consolidation or merger.
"Exchange Act of 1934" shall mean the Securities Exchange Act of 1934,
as amended.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2
under the Exchange Act of 1934, as in effect on the date hereof.
(2) Within 15 Business Days after the occurrence of a Change
in Control, the Company shall mail a written notice of Change in
Control by first-class mail to the Trustee and to each Holder (and to
beneficial owners as required by applicable law, including, without
limitation, Rule 13c-4 under the Securities Exchange Act of 1934) and,
if any Bearer Securities are then outstanding, shall cause a copy of
such notice to be published at least once in an Authorized Newspaper
located in The City of New York and, if any Securities are then listed
on any stock exchange located outside the United States, in an
Authorized Newspaper in such city as the stock exchange so requires.
The notice shall include or transmit a form of Change in Control
Purchase Notice (as described below) to be completed by the Holder and
shall state:
(a) the events causing a Change in Control and the
date of such Change in Control;
(b) the date by which the Change in Control Purchase
Notice pursuant to this Section 1501 must be given;
(c) the Change in Control Purchase Date;
(d) the Change in Control Purchase Price;
(e) the name and address of the Trustee and the
Office or Agency;
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(f) that the Securities must be surrendered to the
Trustee or the Office or Agency to collect payment;
(g) that the Change in Control Purchase Price for any
Security as to which a Change in Control Purchase Notice has
been duly given and not withdrawn will be paid promptly
following the later of the Change in Control Purchase Date or
the time of surrender of such Security as described in Section
1501(2)(f);
(h) the procedures the Holder must follow to exercise
rights under this Section 1501(2) and a brief description of
those rights; and
(i) the procedures for withdrawing a Change in
Control Purchase Notice.
(3) A Holder may exercise its rights specified in Section
1501(l) upon delivery of a written notice of purchase (a "Change in
Control Purchase Notice") to the Trustee or to the Office or Agency at
any time prior to the close of business of the Change in Control
Purchase Date, stating:
(a) the certificate number or numbers of the Security
or Securities, except in the case of global Securities, which
the Holder will deliver to be purchased;
(b) the portion of the principal amount of the
Security or Securities which the Holder will deliver to be
purchased, which portion must be $1,000 or an integral
multiple thereof; and
(c) that such Security or Securities shall be
purchased on the Change in Control Purchase Date pursuant to
the terms and conditions specified in the Securities.
The delivery of the Security, by hand or by registered mail prior to,
on or after the Change in Control Purchase Date (together with all necessary
endorsements), to the Trustee or to the Office or Agency shall be a condition
precedent to the obligation of the Company to pay to the Holder the Change in
Control Purchase Price therefor; provided, however, that such Change in Control
Purchase Price shall be so paid pursuant to this Section 1501 only if the
Security so delivered to the Trustee or such Office or Agency shall conform in
all respects to the description thereof set forth in the related Change in
Control Purchase Notice.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Trustee or to the Office or Agency, the Change in Control Purchase Notice
contemplated by this Section 1501(3) shall have the right to withdraw such
Change in Control Purchase Notice at any time prior to or on the Change in
Control Purchase Date by delivery of a written notice of withdrawal to the
Trustee or to such office or agency in accordance with Section 1502.
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Section 1502. Effect of Change in Control Purchase Notice.
Upon receipt by the Company of the Change in Control Purchase Notice
specified in Section 1501(3), the Holder of the Security in respect of which
such Change in Control Purchase Notice was given shall (unless such Change in
Control Purchase Notice is withdrawn as specified in the following paragraph)
thereafter be entitled to receive solely the Change in Control Purchase Price
with respect to such Security. Such Change in Control Purchase Price shall be
paid to such Holder promptly following the later of (x) the Change in Control
Purchase Date, as the case may be, with respect to such Security (provided the
conditions in Section 1501(3), as applicable, have been satisfied) and (y) the
time of delivery of such Security to the Trustee or to the Office or Agency by
the Holder thereof in the manner required by Section 1501(3) as applicable.
A Change in Control Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Trustee or to the
Office or Agency at any time prior to the close of business on the Change in
Control Purchase Date, specifying:
(1) the certificate number or numbers of the Security or
Securities, except in the case of global Securities, in respect of
which such notice of withdrawal is being submitted;
(2) the principal amount of the Security or Securities with
respect to which such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security or
Securities which remains subject to the original Change in Control
Purchase Notice, and which has been and will be delivered for purchase
by the Company.
There shall be no purchase of any Securities pursuant to Section 1501
if there has occurred and is continuing an Event of Default (other than a
default in the payment of the Change in Control Purchase Price).
Section 1503. Deposit of Change in Control Purchase Price.
Prior to 12:00 Noon (local time in The City of New York) on the
Business Day following the Change in Control Purchase Date, the Company shall
deposit with the Trustee (or, if the Company or a Subsidiary or an Affiliate of
either of them is acting as Paying Agent, shall segregate and hold in trust as
provided in Section 1003) an amount of cash in immediately available funds or
Securities, if expressly permitted hereunder, sufficient to pay the aggregate
Change in Control Purchase Price of all the Securities or portions thereof which
are to be purchased. If a deposit is made with the Trustee of the aforesaid
amount of cash or Securities, the Securities or portions thereof with respect to
which a Change in Control Purchase Notice has been delivered and not validly
withdrawn shall become due and payable as of the Business Day following the
applicable Change in Control Purchase Date, and on and after such date interest
payable in respect of such Securities shall cease and all other rights of the
Holders thereof shall terminate, other than the right to receive the Change in
Control Purchase Price upon delivery of such Securities to the Trustee.
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Section 1504. Covenant to Comply With Securities Laws Upon Purchase of
Securities.
In connection with any purchase of Securities under Section 1501
hereof, the Company shall (a) comply with Rule 13e-4 under the Securities
Exchange Act of 1934, if applicable, (b) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Securities Exchange Act of 1934,
if applicable, and (c) otherwise comply with all Federal and state securities
laws regulating the purchase of the Securities (including positions of the
Commission under applicable no-action letters) so as to permit the rights and
obligation under Section 1501 to be exercised in the time and in the manner
specified in Section 1501 and 1502.
Section 1505. Repayment to the Company.
The Trustee shall return to the Company any cash, together with
interest or dividends, if any, thereon (subject to the provisions of Section
605) held by it for the payment of the Change in Control Purchase Price of the
Securities that remain unclaimed as provided in the Securities; provided,
however, that to the extent the aggregate amount of cash deposited by the
Company pursuant to Section 1503 exceeds the aggregate Change in Control
Purchase Price of the Securities or portions thereof to be purchased, then
promptly after the Change in Control Purchase Date, the Trustee shall return any
such excess to the Company together with interest or dividends, if any, thereon
(subject to the provisions of Section 605).
ARTICLE 16.
SUBORDINATION
Section 1601. Securities Subordinated to Senior Indebtedness.
Notwithstanding the provisions of Section 506 or any other provision
herein or in any Security, the Company and the Trustee and, by their acceptance
thereof, the Holders of the Securities (a) covenant and agree that all payments
by the Company of the principal of and any premium or interest on and any
Additional Amounts with respect to the Securities (other than Securities which
have been discharged pursuant to Article Four or Securities that provide for a
sinking fund pursuant to the Board Resolution, Officers' Certificate or
supplemental indenture establishing the series as to which such sinking fund is
applicable) shall be subordinated in accordance with the provisions of this
Article Sixteen in right of payment to the prior payment in full, in cash or
cash equivalents, of all amounts payable on, under or in connection with Senior
Indebtedness, and (b) acknowledge that holders of Senior Indebtedness are or
shall be relying on this Article Sixteen. Nothing herein or in any Security is
intended to or shall limit the amount of Senior Indebtedness the Company may
incur.
Section 1602. Priority and Payment of Proceeds in Certain Events:
Remedies Standstill.
(1) Upon any payment or distribution of assets or securities
of the Company, as the case may be, of any kind or character, whether
in cash, property or securities, upon any dissolution or winding up or
total or partial liquidation or reorganization of the Company, whether
voluntary or involuntary, or in bankruptcy, insolvency, receivership or
other proceedings, all amounts payable on, under or in connection with
Senior
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Indebtedness (including any interest accruing on such Senior
Indebtedness subsequent to the commencement of a bankruptcy,
insolvency, receivership or similar proceeding) shall first be paid,
ratably according to the aggregate amounts remaining unpaid on account
of the principal of and any premium and interest on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid, in
cash, or payment provided for in cash or cash equivalents, ratably
according to the aggregate amounts remaining unpaid on account of the
principal of and any premium and interest on the Senior Indebtedness
held or represented by each, to the extent necessary to make payment in
full of all Senior Indebtedness remaining unpaid, before the Holders or
the Trustee on behalf of the Holders or the holders of Preferred
Securities, if any, shall be entitled to receive from the Company any
payment of principal of or any premium or interest on or Additional
Amounts with respect to the Securities or distribution of any assets or
securities.
(2) No direct or indirect payment by or on behalf of the
Company of principal of or any premium or interest on or Additional
Amounts with respect to the Securities (other than Securities which
have been discharged pursuant to Article Four or Securities that
provide for a sinking fund), whether pursuant to the terms of the
Securities or upon acceleration or otherwise, shall be made if, at the
time of such payment, there exists (a) a default in the payment of all
or any portion of any Senior Indebtedness and the Trustee has received
written notice thereof from the Company, from holders of Senior
Indebtedness or from any trustee, representative or agent therefor, or
(b) any other default affecting Senior Indebtedness as a result of
which the maturity of Senior Indebtedness has been accelerated and the
Trustee has received written notice from the Company, from holders of
Senior Indebtedness or from any trustee, representative or agent
therefor, and such default shall not have been cured or waived by or on
behalf of the holders of such Senior Indebtedness.
(3) If, notwithstanding the foregoing provisions prohibiting
such payment or distribution, the Trustee or any Holder shall have
received any payment on account of the principal of or any premium or
interest on or Additional Amounts with respect to the Securities when
such payment is prohibited by this Section 1602 and before all amounts
payable on, under or in connection with Senior Indebtedness are paid in
full in cash or cash equivalents, then and in such event (subject to
the provisions of Section 1608) such payment or distribution shall be
received and held in trust for the holders of Senior Indebtedness and,
at the written direction of the trustee, representative or agent for
the holders of the Senior Indebtedness, shall be paid to the holders of
the Senior Indebtedness remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in cash or cash equivalents.
Upon any payment or distribution of assets or securities referred to in
this Article Sixteen, the Trustee and the Holders shall be entitled to rely upon
any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending
or upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making any such payment or distribution,
delivered to the Trustee or to the Holders for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the
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amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Sixteen.
Section 1603. Payments which May Be Made Prior to Notice.
Nothing in this Article Sixteen or elsewhere in this Indenture shall
prevent (1) the Company, except under the conditions described in Section 1602,
from making payments of principal of or any premium or interest on or Additional
Amounts with respect to the Securities or from depositing with the Trustee any
monies for such payments, or (2) the application by the Trustee of any monies
deposited with it for the purpose of making such payments of principal of or any
premium or interest on or Additional Amounts with respect to the Securities, to
the Holders entitled thereto, unless at least two Business Days prior to the
date when such payment would otherwise (except for the prohibitions contained in
Section 1602) become due and payable, the Trustee shall have received the
written notice provided for in Section 1602(2)(a) or (b).
Section 1604. Rights of Holders of Senior Indebtedness Not to Be
Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time or in any way be
prejudiced or impaired by any act or failure to act in good faith by any such
holder, or by any noncompliance by the Company with the terms and provisions and
covenants herein regardless of any knowledge thereof any such holder may have or
otherwise be charged with.
The provisions of this Article Sixteen are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness. Notwithstanding anything to the contrary in this Article Sixteen,
to the extent any Holders or the Trustee have paid over or delivered to any
holder of Senior Indebtedness any payment or distribution received on account of
the principal of or any premium or interest on or Additional Amounts with
respect to the Securities to which any other holder of Senior Indebtedness shall
be entitled to share in accordance with Section 1602, no holder of Senior
Indebtedness shall have a claim or right against any Holders or the Trustee with
respect to any such payment or distribution or as a result of the failure to
make payments or distributions to such other holder of Senior Indebtedness.
Section 1605. Trustee May Take Action to Effectuate Subordination.
Each Holder of a Security, by his acceptance thereof, authorizes and
directs the Trustee on his behalf to take such action as may be required by the
trustee, representative or agent for holders of Senior Indebtedness or by the
Company to effectuate, as between the holders of Senior Indebtedness and the
Holders, the subordination as provided in this Article Sixteen and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1606. Subrogation.
Upon the payment in full, in cash or cash equivalents, of all Senior
Indebtedness, any Holder shall be subrogated to the rights of the holders of
such Senior Indebtedness to receive payments or distributions of assets of the
Company in respect of such Senior Indebtedness until the Securities shall be
paid in full; and for the purposes of such subrogation, no payments or
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distributions to holders of such Senior Indebtedness of any cash property or
securities to which such Holders of the Securities would be entitled except for
this Article Sixteen, and no payment pursuant to this Article Sixteen to holders
of such Senior Indebtedness by such Holders of the Securities, shall, as between
the Company, its creditors other than holders of such Senior Indebtedness and
such Holders of the Securities, be deemed to be a payment by the Company to or
on account of such Senior Indebtedness, it being understood that the provisions
of this Article Sixteen are solely for the purpose of defining the relative
rights of the holders of such Senior Indebtedness, on the one hand, and such
Holders of the Securities, on the other hand.
If any payment or distribution to which Holders of Securities would
otherwise have been entitled but for the provisions of this Article Sixteen
shall have been applied, pursuant to this Article Sixteen, to the payment of all
Senior Indebtedness, then and in such case such Holders of the Securities shall
be entitled to receive from the holders of such Senior Indebtedness at the time
outstanding any payments or distributions received by such holders of Senior
Indebtedness in excess of the amount sufficient to pay, in cash or cash
equivalents, all such Senior Indebtedness in full.
Section 1607. Obligations of Company Unconditional; Reinstatement.
Nothing in this Article Sixteen or elsewhere in this Indenture or in
any Security is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to such
Holders the principal of and any premium and interest on and Additional Amounts
with respect to the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the relative
rights of such Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or any Holder of Securities or holder of Preferred
Securities, as applicable, from exercising all remedies otherwise permitted by
applicable law under this Indenture, subject to the rights, if any, under this
Article Sixteen of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company received upon the exercise of any such
remedy.
The failure to make a scheduled payment of principal of or any premium
or interest on or Additional Amounts with respect to the Securities by reason of
Section 1602 shall not be construed as preventing the occurrence of a Default or
an Event of Default under Section 501; provided, however, that if (1) the
conditions preventing the making of such payment no longer exist, and (2) such
Holders of the Securities are made whole with respect to such omitted payments,
the Default or Event of Default relating thereto (including any failure to pay
any accelerated amounts) shall be automatically waived, and the provisions of
the Indenture shall be reinstated as if no such Event of Default had occurred.
Section 1608. Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee or Paying Agent shall not be charged with the knowledge of
the existence of any default in the payment of all or a portion of any Senior
Indebtedness or any other default affecting Senior Indebtedness as a result of
which the maturity of the Senior Indebtedness has been accelerated, unless and
until the Trustee or Paying Agent shall have received written notice
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thereof from the Company or one or more holders of Senior Indebtedness or from
any trustee, representative or agent therefor; and, prior to the receipt of any
such written notice, the Trustee or Paying Agent may conclusively assume that no
such facts exist.
Unless at least two Business Days prior to the date when by the terms
of this Indenture any monies are to be deposited by the Company with the Trustee
or any Paying Agent for any purpose (including, without limitation, the payment
of the principal of or any premium or interest on or Additional Amounts with
respect to any Security), the Trustee or Paying Agent shall have received with
respect to such monies the notice provided for in Section 1602, the Trustee or
Paying Agent shall have full power and authority to receive and apply such
monies to the purpose for which they were received. Neither of them shall be
affected by any notice to the contrary, which may be received by either on or
after such second Business Day. The foregoing shall not apply to the Paying
Agent if the Company is acting as Paying Agent. Nothing in this Section 1608
shall limit the right of the holders of Senior Indebtedness to recover payments
as contemplated by Section 1602. The Trustee or Paying Agent shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself or itself to be a holder of such Senior Indebtedness (or a trustee,
representative or agent on behalf of such holder) to establish that such notice
has been given by a holder of such Senior Indebtedness or a trustee,
representative or agent on behalf of any such holder. The Trustee shall not be
deemed to have any fiduciary duty to the holders (and shall be fully protected
in relying upon such notice) of Senior Indebtedness.
Section 1609. Right of Trustee to Hold Senior Indebtedness.
The Trustee and any Paying Agent shall be entitled to all of the rights
set forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by them, to the same extent as any other holder of such Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee or any Paying Agent of any of its rights as such holder.
Section 1610. Notice to Trustee.
The Company shall give prompt written notice to the Trustee or Paying
Agent of any fact known to the Company which would prohibit the making of any
payment to or by the Trustee in respect of the Securities. Failure to give such
notice shall not affect the subordination of the Securities to Senior
Indebtedness. Notwithstanding the provisions of this or any other provision of
this Indenture, the Trustee or Paying Agent shall not be charged with knowledge
of the existence of any facts which would prohibit the making of any payment to
or by the Trustee or Paying Agent in respect of the Securities, unless and until
the Trustee or Paying Agent shall have received written notice from the Company
or a holder of Senior Indebtedness or from any trustee or agent therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, or Paying Agent shall be entitled in all respects to
assume that no such facts exist; provided, however, that if a Responsible
Officer of the Trustee or Paying Agent shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of the principal of or any premium or interest on or Additional Amounts with
respect to any Security, the notice with respect to such money provided for in
this Section 1610, then, anything herein contained to the contrary
notwithstanding, the Trustee or Paying Agent shall have full power and authority
to receive such money and to apply the same to the purpose for
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which such money was received and shall not be affected by any notice to the
contrary which may be received by it within three Business Days prior to such
date.
The Trustee, subject to the provisions of Section 601, or Paying Agent
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself or itself to be a holder of Senior Indebtedness
(or a trustee or agent on behalf of such holder) to establish that such notice
has been given by a holder of Senior Indebtedness (or a trustee or agent on
behalf of any such holder). In the event that the Trustee or Paying Agent
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Indebtedness to participate in any
payment or distribution pursuant to this Article Sixteen, the Trustee or Paying
Agent may request such Person to furnish evidence to the reasonable satisfaction
of the Trustee or Paying Agent as to the amount of Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Sixteen, and if such evidence is not furnished, the
Trustee or Paying Agent may defer any payment which it may be required to make
for the benefit of such Person pursuant to the terms of this Indenture pending
judicial determination as to the rights of such Person to receive such payment.
Section 1611. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee, subject to the provisions of Section 601,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, Custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
Sixteen.
Section 1612. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other Person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article or otherwise. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to holders of Senior Indebtedness shall be
read into this Indenture against the Trustee.
Nothing in this Article shall apply to claims of or payments to, the
Trustee under or pursuant to Section 606.
* * * * *
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
(SEAL] APACHE CORPORATION
Attest:
By By
----------------------------------- ---------------------------------
Name: Name:
Title: Title:
(SEAL] THE CHASE MANHATTAN BANK,
as Trustee
Attest:
By By
----------------------------------- ---------------------------------
Name: Name:
Title: Title:
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STATE OF TEXAS )
) ss.
COUNTY OF HARRIS )
On the ____ day of _________________, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is an Assistant Treasurer of APACHE CORPORATION, a State of Delaware
corporation, one of the persons described in and who executed the foregoing
instrument; that he knows the seal of said Corporation; that the seal affixed to
said instrument is such Corporation's seal; that it was so affixed by authority
of the Board of Directors of said Corporation; and that he signed his name
thereto by like authority.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
88
<PAGE> 97
STATE OF TEXAS )
) ss.
COUNTY OF HARRIS )
On the ____ day of _________________, ____, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he is a ______________ of ________________________, a [banking corporation]
organized and existing under the laws of the ______________________, one of the
persons described in and who executed the foregoing instrument; that he knows
the seal of said Corporation; that the seal affixed to said instrument is such
Corporation's seal; that it was so affixed by authority of the Board of
Directors of said Corporation; and that he signed his name thereto by like
authority.
-----------------------------------
Notary Public
[NOTARIAL SEAL]
89
<PAGE> 1
EXHIBIT 4.9
================================================================================
FORM OF
PREFERRED SECURITIES GUARANTEE AGREEMENT
APACHE Trust [I/II]
Dated as of ______________
================================================================================
<PAGE> 2
CROSS REFERENCE TABLE(1)
<TABLE>
<CAPTION>
Section of Trust Indenture Act
of 1939, as amended Section of Agreement
<S> <C>
310(a) .....................................................................................................4.1(a)
310(b) ........................................................................................................2.8
310(c) ...............................................................................................Inapplicable
311(a) ........................................................................................................2.2
311(b) ........................................................................................................2.2
311(c) ...............................................................................................Inapplicable
312(a) ........................................................................................................2.2
312(b) ........................................................................................................2.2
312(c) ...............................................................................................Inapplicable
313(a) ........................................................................................................2.3
313(b) ........................................................................................................2.3
313(c) ........................................................................................................2.3
313(d) ........................................................................................................2.3
314(a) ........................................................................................................2.4
314(b) ...............................................................................................Inapplicable
314(c) ........................................................................................................2.5
314(d) ...............................................................................................Inapplicable
314(e) ........................................................................................................2.5
314(f) ...............................................................................................Inapplicable
315(a) .............................................................................................3.1(d); 3.2(a)
315(b) .....................................................................................................2.7(a)
315(c) .....................................................................................................3.1(c)
315(d) .....................................................................................................3.1(d)
316(a) ................................................................................................2.6; 5.4(a)
317(a) .....................................................................................................3.1(b)
318(a) .....................................................................................................2.1(b)
</TABLE>
- -------------
(1) This Cross-Reference Table does not constitute part of the Agreement
and shall not have any bearing upon the interpretation of any of its
terms or provisions.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I DEFINITIONS AND INTERPRETATIONS.........................................................................1
SECTION 1.1 Definitions and Interpretations...............................................................1
ARTICLE II TRUST INDENTURE ACT....................................................................................5
SECTION 2.1 Trust Indenture Act: Application.............................................................5
SECTION 2.2 List of Holders of Securities.................................................................5
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee.........................................5
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee....................................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent..............................................6
SECTION 2.6 Events of Default; Waiver.....................................................................6
SECTION 2.7 Event of Default; Notice......................................................................6
SECTION 2.8 Conflicting Interests.........................................................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF PREFERRED SECURITIES GUARANTEE TRUSTEE...................................8
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee...............................8
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee......................................9
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee........................................12
ARTICLE IV PREFERRED SECURITIES GUARANTEE TRUSTEE................................................................12
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility..........................................12
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities Guarantee Trustees..............12
ARTICLE V GUARANTEE..............................................................................................13
SECTION 5.1 Guarantee....................................................................................13
SECTION 5.2 Waiver of Notice and Demand..................................................................14
SECTION 5.3 Obligations Not Affected.....................................................................14
SECTION 5.4 Rights of Holders............................................................................15
SECTION 5.5 Guarantee of Payment.........................................................................15
SECTION 5.6 Subrogation..................................................................................15
SECTION 5.7 Independent Obligations......................................................................15
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
ARTICLE VI LIMITATION OF TRANSACTIONS; RANKING...................................................................16
SECTION 6.1 Limitation of Transactions...................................................................16
SECTION 6.2 Ranking......................................................................................16
ARTICLE VII TERMINATION..........................................................................................17
SECTION 7.1 Termination..................................................................................17
ARTICLE VIII INDEMNIFICATION.....................................................................................17
SECTION 8.1 Exculpation..................................................................................17
SECTION 8.2 Indemnification..............................................................................17
SECTION 8.3 Compensation.................................................................................18
ARTICLE IX MISCELLANEOUS.........................................................................................18
SECTION 9.1 Successors and Assigns.......................................................................18
SECTION 9.2 Amendments...................................................................................18
SECTION 9.3 Notices......................................................................................19
SECTION 9.4 Benefit......................................................................................19
SECTION 9.5 Governing Law................................................................................20
SECTION 9.6 Counterparts.................................................................................20
</TABLE>
ii
<PAGE> 5
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities
Guarantee"), dated as of ______________, is executed and delivered by Apache
Corporation, a Delaware corporation (the "Guarantor"), and ________________, as
trustee (the "Preferred Securities Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of Apache Trust [I/II], a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement
(the "Agreement"), dated as of ________________, among the trustees of the
Issuer named therein, the Guarantor, as sponsor, and the holders from time to
time of undivided beneficial interests in the assets of the Issuer, the Issuer
is issuing on the date hereof up to _______________ preferred securities,
liquidation amount $___ per preferred security, having an aggregate liquidation
amount of $_____________ designated the __% preferred securities (the "Preferred
Securities");
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay to
the Holders the Guarantee Payments (as defined herein) and to make certain other
payments and fulfill certain other obligations on the terms and conditions set
forth herein; and
WHEREAS, the Guarantor is concurrently herewith executing and
delivering a guarantee agreement (the "Common Securities Guarantee") with
substantially identical terms to this Preferred Securities Guarantee for the
benefit of the holders of the Common Securities (as defined herein), except that
if an Event of Default (as defined in the Agreement), has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments under the Common Securities Guarantee are subordinated to the rights of
Holders to receive Guarantee Payments under this Preferred Securities Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder, which purchase the Guarantor hereby agrees shall benefit the Guarantor,
the Guarantor executes and delivers this Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
SECTION 1.1 Definitions and Interpretations
In this Preferred Securities Guarantee, unless the context
otherwise requires or otherwise specifies:
(a) capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this
Section 1.1;
<PAGE> 6
(b) terms defined in the Agreement as at the date of
execution of this Preferred Securities Guarantee have
the same meaning when used in this Preferred
Securities Guarantee unless otherwise defined in this
Preferred Securities Guarantee;
(c) a term defined anywhere in this Preferred Securities
Guarantee, including the recitals, has the same
meaning throughout;
(d) all references to "the Preferred Securities
Guarantee" or "this Preferred Securities Guarantee"
are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Preferred Securities Guarantee
to an Article, Section or other subdivision are to an
Article, Section or other subdivision of this
Preferred Securities Guarantee;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Preferred Securities
Guarantee, unless otherwise defined in this Preferred
Securities Guarantee;
(g) a reference to the singular includes the plural and
vice versa;
(h) the words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without
limitation; and
(i) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement
as a whole and not to any particular Article or
Section or other subdivision.
"Affiliate" has the same meaning given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Business Day" means any day other than Saturday, Sunday or
any day on which banking institutions and trust companies in The City of New
York are permitted or required by any applicable law or executive order to
close.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
Securities Guarantee Trustee at which the corporate trust business of the
Preferred Securities Guarantee Trustee shall, at any particular time, be
principally administered, which office at the date of execution of this
Guarantee is located at ___________________, __________________, New York, NY
_____________, Attention: ___________________.
2
<PAGE> 7
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of debt securities of the
Guarantor issued under the Indenture (as defined in the Agreement) held by the
Property Trustee (as defined in the Agreement) on behalf of the Issuer.
"Direction" by a person means a written direction signed: (a)
if the Person is a natural person, by that Person; or (b) in any other case in
the name of such Person by one or more Authorized Officers of that Person.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by the Issuer:
(i) any accrued and unpaid Distributions (as defined
in the Agreement) that are required to be paid on such
Preferred Securities to the extent the Issuer shall have funds
available therefor,
(ii) the redemption or repayment price, if any,
specified in the Agreement, including all accrued and unpaid
distributions to the date of redemption or repayment (the
"Redemption or Repayment Price") with respect to Preferred
Securities called or submitted for redemption or repayment, to
the extent the Issuer has funds available therefor, and
(iii) upon a voluntary or involuntary dissolution,
winding-up or termination of the Issuer (other than in
connection with the distribution of Debt Securities to the
Holders in exchange for Preferred Securities if so provided in
the Agreement), the lesser of (a) the aggregate of the
liquidation amount and all accrued and unpaid Distributions on
the Preferred Securities to the date of payment, to the extent
the Issuer shall have funds available therefor, and (b) the
amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer (in
either case, the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the Holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Securities Guarantee
Trustee, including in its individual capacity, any Affiliate of the Preferred
Securities Guarantee Trustee, or any officers, directors, shareholders, members,
partners, employees, representatives, nominees, custodians or agents of the
Preferred Securities Guarantee Trustee.
"Officers' Certificate" means, with respect to (A) the
Guarantor, a certificate signed by the Chairman of the Board, a Vice Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Guarantor
3
<PAGE> 8
and (B) any other Person, a certificate signed by any two Authorized Officers of
such Person. Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Preferred Guarantee Agreement shall
comply with Section 314 of the Trust Indenture Act and shall include:
(a) a statement that the individuals signing the Officers'
Certificate have read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such Officers' Certificate are based;
(c) a statement that, in the opinion of each such individual,
he or she has made such examination or investigation as, in such individual's
opinion, is necessary to enable such individual to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
individuals, such condition or covenant has been complied with.
"Other Document" means any instrument or agreement
constituting Trust Property, other than the Debentures, specified in the
Agreement.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee Trustee" means
_________________, until a Successor Preferred Securities Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this
Preferred Securities Guarantee and thereafter means each such Successor
Preferred Securities Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Guarantee Trustee with direct responsibility for the Preferred
Guarantee Trustee's obligations under this Preferred Guarantee Agreement and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that Officer's knowledge of
and familiarity with the particular subject.
"Successor Preferred Securities Guarantee Trustee" means a
successor Preferred Securities Guarantee Trustee possessing the qualifications
to act as Preferred Securities Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
4
<PAGE> 9
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) If and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 List of Holders of Securities
In accordance with Section 312(a) of the Trust Indenture Act,
the Guarantor shall provide to the Preferred Securities Guarantee Trustee:
(a) within 14 days after each of the dates as are determined
for the Property Trustee pursuant to Section 2.2(a)(i) of the Agreement, a list,
in such form as the Preferred Securities Guarantee Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of
such date, provided that the Guarantor shall not be obligated to provide such
List of Holders if the Preferred Securities Guarantee Trustee is the Registrar
or at any time the List of Holders does not differ from the most recent List of
Holders given to the Preferred Securities Guarantee Trustee by the Guarantor;
and
(b) at any other time, within 30 days of receipt by the
Guarantor of a written request by the Preferred Securities Guarantee Trustee for
a List of Holders as of a date no more than 14 days before such List of Holders
is given to the Preferred Securities Guarantee Trustee. The Preferred Securities
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the List of Holders given to it or
which it receives in its capacity as paying agent or registrar (if acting in
such capacity), provided that the Preferred Securities Guarantee Trustee may
destroy any List of Holders previously given to it on receipt of a new List of
Holders.
The Preferred Securities Guarantee Trustee shall comply with
its obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture
Act.
SECTION 2.3 Reports by the Preferred Securities Guarantee Trustee
Within 60 days after May 15 of each year, commencing with the
May 15 that first occurs following the issuance of the Preferred Securities, the
Preferred Securities Guarantee Trustee shall provide to the Holders such reports
as are required by Section 313 of the Trust Indenture Act, if any, in the form
and in the manner provided by Section 313 of the Trust Indenture Act. The
Preferred Securities Guarantee Trustee shall also comply with the requirements
of Section 313(d) of the Trust Indenture Act.
5
<PAGE> 10
SECTION 2.4 Periodic Reports to Preferred Securities Guarantee Trustee
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such documents, reports and information as required by Section
314 (if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Securities
Guarantee Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Preferred Securities Guarantee that relate to any of
the matters set forth in Section 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of not less than a Majority in liquidation amount
of Preferred Securities may, by vote or written consent, on behalf of all
Holders, waive any past Event of Default and its consequences. Upon such waiver,
any such Event of Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Securities Guarantee Trustee shall, within
90 days after a Responsible Officer of the Preferred Securities Guarantee
Trustee obtains actual knowledge of the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders, notices of all
such Events of Default actually known to such Responsible Officer of the
Preferred Securities Guarantee Trustee, unless such defaults have been cured
before the giving of such notice, provided, that, except in the case of default
in the payment of any Guarantee Payment or, if applicable, in the delivery of
any cash, securities or other property in exchange for or upon conversion or
redemption of or otherwise in accordance with the terms of, any Debenture or
Other Document or the Securities, the Preferred Securities Guarantee Trustee
shall be protected in withholding such notice if and so long as a Responsible
Officer of the Preferred Securities Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
(b) The Preferred Securities Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default except:
(i) a default in the payment of any Guarantee Payment;
(ii) any failure to deliver any cash, securities or other
property in exchange for or upon conversion or
redemption of or otherwise in accordance with the
terms of any Debenture or Other Document or the
Securities, if applicable; and
6
<PAGE> 11
(iii) any default as to which the Preferred Securities
Guarantee Trustee shall have received written notice
or of which a Responsible Officer of the Preferred
Securities Guarantee Trustee charged with the
administration of this Preferred Securities Guarantee
Agreement shall have actual knowledge.
(c) The Guarantor shall file annually within 30 days after May
15 of each year, commencing with the May 15 that first occurs following the
issuance of the Preferred Securities, with the Preferred Securities Guarantee
Trustee in accordance with Section 314(a)(4) of the Trust Indenture Act a
certification as to whether or not it is in compliance with all the conditions
applicable to it under this Preferred Securities Guarantee Agreement.
SECTION 2.8 Conflicting Interests
(a) If the Preferred Securities Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Securities Guarantee Trustee shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(b) The Agreement and the Indenture shall be deemed to be
specifically described in this Preferred Securities Guarantee for the purposes
of clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act. [Describe others if applicable]
7
<PAGE> 12
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Securities Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by the
Preferred Securities Guarantee Trustee for the benefit of the Holders, and the
Preferred Securities Guarantee Trustee shall not transfer this Preferred
Securities Guarantee to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(b) or to a Successor Preferred Securities Guarantee
Trustee on acceptance by such Successor Preferred Securities Guarantee Trustee
of its appointment to act as Successor Preferred Securities Guarantee Trustee.
The right, title and interest of the Preferred Securities Guarantee Trustee
shall automatically vest in any Successor Preferred Securities Guarantee
Trustee, and such vesting and succession of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Preferred Securities Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible
Officer of the Preferred Securities Guarantee Trustee has occurred and is
continuing, the Preferred Securities Guarantee Trustee shall enforce this
Preferred Securities Guarantee for the benefit of the Holders.
(c) The Preferred Securities Guarantee Trustee, before the
occurrence of any Event of Default and after the curing or waiver of all Events
of Default that may have occurred, shall undertake to perform only such duties
as are specifically set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this Preferred Securities
Guarantee against the Preferred Securities Guarantee Trustee. In case an Event
of Default has occurred (that has not been cured or waived pursuant to Section
2.6) and is actually known to a Responsible Officer of the Preferred Securities
Guarantee Trustee, the Preferred Securities Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall
be construed to relieve the Preferred Securities Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, its
own bad faith or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of such Events of Default that
may have occurred:
(A) the duties and obligations of the
Preferred Securities Guarantee Trustee shall be
determined solely by the express provisions of this
Preferred Securities Guarantee, and the Preferred
Securities Guarantee Trustee shall not be liable
except for the performance of such duties and
8
<PAGE> 13
obligations as are specifically set forth in this
Preferred Securities Guarantee, and no implied
covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred
Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part
of the Preferred Securities Guarantee Trustee, the
Preferred Securities Guarantee Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Preferred Securities Guarantee Trustee and
conforming to the requirements of this Preferred
Securities Guarantee; but in the case of any such
certificates or opinions that by any provision hereof
are specifically required to be furnished to the
Preferred Securities Guarantee Trustee, the Preferred
Securities Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they
conform to the requirements of this Preferred
Securities Guarantee;
(ii) the Preferred Securities Guarantee Trustee shall
not be liable for any error of judgment made in good faith by
a Responsible Officer of the Preferred Securities Guarantee
Trustee, unless it shall be proved that the Preferred
Securities Guarantee Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Preferred Securities Guarantee Trustee
shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in
liquidation amount of the Preferred Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Preferred Securities Guarantee
Trustee, or exercising any trust or power conferred upon the
Preferred Securities Guarantee Trustee under this Preferred
Securities Guarantee; and
(iv) no provision of this Preferred Securities
Guarantee shall require the Preferred Securities Guarantee
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if
the Preferred Securities Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such
funds or liability is not reasonably assured to it under the
terms of this Preferred Securities Guarantee or if indemnity
reasonably satisfactory to the Preferred Securities Guarantee
Trustee against such risk or liability is not reasonably
assured to it.
SECTION 3.2 Certain Rights of Preferred Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) the Preferred Securities Guarantee Trustee may
conclusively rely, and shall be fully protected in acting or
refraining from acting upon, any resolution, certificate,
statement, instrument, opinion, report, notice, request,
9
<PAGE> 14
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented
by the proper party or parties;
(ii) any direction or act of the Guarantor
contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by a Direction or an Officers'
Certificate;
(iii) whenever, in the administration of this
Preferred Securities Guarantee, the Preferred Securities
Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Preferred Securities Guarantee Trustee
(unless other evidence is herein specifically prescribed) may,
in the absence of negligence, bad faith or willful misconduct
on its part, request and conclusively rely upon an Officers'
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor;
(iv) the Preferred Securities Guarantee Trustee shall
have no duty to see to any recording, filing or registration
of any instrument (or any rerecording, refiling or
reregistration thereof);
(v) the Preferred Securities Guarantee Trustee may
consult with competent legal counsel or other experts, and the
advice or written opinion of such counsel and experts with
respect to legal matters or advice within the scope of such
legal counsel's or expert's area of expertise shall be full
and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Preferred
Securities Guarantee Trustee shall have the right at any time
to seek instructions concerning the administration of this
Preferred Securities Guarantee from any court of competent
jurisdiction;
(vi) the Preferred Securities Guarantee Trustee shall
be under no obligation to exercise any of the rights or powers
vested in it by this Preferred Securities Guarantee at the
request or direction of any Holder, unless such Holder shall
have provided to the Preferred Securities Guarantee Trustee
such security and indemnity, reasonably satisfactory to the
Preferred Securities Guarantee Trustee, against the reasonable
costs, expenses (including reasonable attorneys' fees and
reasonable expenses and the expenses of the Preferred
Securities Guarantee Trustees, agents, nominees or custodians)
and liabilities that might be incurred by it in complying with
such request or direction, including such reasonable advances
as may be requested by the Preferred Securities Guarantee
Trustee; provided that, nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Preferred Securities
Guarantee Trustee, upon the occurrence of an Event of Default,
of its obligation to exercise the rights and powers vested in
it by this Preferred Securities Guarantee;
10
<PAGE> 15
(vii) the Preferred Securities Guarantee Trustee
shall not be bound to conduct an investigation into the facts
or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Preferred
Securities Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit;
(viii) the Preferred Securities Guarantee Trustee may
execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents,
nominees, custodians or attorneys, and the Preferred
Securities Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(ix) any action taken by the Preferred Securities
Guarantee Trustee or its agents hereunder shall bind the
Holders, and the signature of the Preferred Securities
Guarantee Trustee or its agents alone shall be sufficient and
effective to perform any such action, and no third party shall
be required to inquire as to the authority of the Preferred
Securities Guarantee Trustee to so act or as to its compliance
with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively
evidenced by the Preferred Securities Guarantee Trustee's or
its agent's taking such action;
(x) whenever in the administration of this Preferred
Securities Guarantee the Preferred Securities Guarantee
Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other
action hereunder, the Preferred Securities Guarantee Trustee
(i) may request instructions from the Holders of a Majority in
liquidation amount of the Preferred Securities, (ii) may
refrain from enforcing such remedy or right or taking such
other action until such instructions are received, and (iii)
shall be protected in conclusively relying on or acting in
accordance with such instructions;
(xi) except as otherwise expressly provided by this
Preferred Securities Guarantee, the Preferred Securities
Guarantee Trustee shall not be under any obligation to take
any action that is discretionary under the provisions of this
Preferred Securities Agreement; and
(xii) the Preferred Securities Guarantee Trustee
shall not be liable for any action taken, suffered, or omitted
to be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Preferred Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee shall
be deemed to impose any duty or obligation on the Preferred Securities Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act
11
<PAGE> 16
or acts or to exercise any such right, power, duty or obligation. No permissive
power or authority available to the Preferred Securities Guarantee Trustee shall
be construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Preferred Securities Guarantee Trustee does
not assume any responsibility for their correctness. The Preferred Securities
Guarantee Trustee makes no representation as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Preferred Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and Exchange
Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject
to supervision or examination by Federal, State, Territorial
or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to
law or to the requirements of the supervising or examining
authority referred to above, then, for the purposes of this
Section 4.1 (a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Securities Guarantee Trustee
shall cease to be eligible to so act under Section 4.1(a), the Preferred
Securities Guarantee Trustee shall immediately resign in the manner and with the
effect set out in Section 4.2(c).
SECTION 4.2 Appointment, Removal and Resignation of Preferred Securities
Guarantee Trustees
(a) Subject to Section 4.2(b), the Preferred Securities
Guarantee Trustee may be appointed or removed without cause at any time:
(i) until the issuance of any Preferred Securities,
by written instrument executed by the Guarantor;
(ii) unless an Event of Default shall have occurred
and be continuing, after the issuance of any Securities, by
the Guarantor; and
12
<PAGE> 17
(iii) if an Event of Default shall have occurred and
be continuing, after the issuance of the Preferred Securities,
by vote or written consent of the Holders of a Majority in
liquidation amount of the Preferred Securities.
(b) The Preferred Securities Guarantee Trustee shall not be
removed in accordance with Section 4.2(a) until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
written instrument executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor.
(c) The Preferred Securities Guarantee Trustee appointed to
office shall hold office until a Successor Preferred Securities Guarantee
Trustee shall have been appointed or until its removal or resignation. The
Preferred Securities Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Preferred Securities Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Preferred Securities
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Securities Guarantee
Trustee and delivered to the Guarantor and the resigning Preferred Securities
Guarantee Trustee.
(d) If no Successor Preferred Securities Guarantee Trustee
shall have been appointed and accepted appointment as provided in this Section
4.2 within 60 days after delivery to the Guarantor of an instrument of removal
or resignation, the Preferred Securities Guarantee Trustee resigning or being
removed may petition any court of competent jurisdiction for appointment of a
Successor Preferred Securities Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Preferred Securities Guarantee Trustee.
(e) No Preferred Securities Guarantee Trustee shall be liable
for the acts or omissions to act of any Successor Preferred Securities Guarantee
Trustee.
(f) Upon termination of this Preferred Securities Guarantee or
removal or resignation of the Preferred Securities Guarantee Trustee pursuant to
this Section 4.2, the Guarantor shall pay to the Preferred Securities Guarantee
Trustee all amounts due to the Preferred Securities Guarantee Trustee accrued to
the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
13
<PAGE> 18
In addition, the Guarantor irrevocably and unconditionally
agrees to cause the Issuer to deliver to the Holders such securities and other
property as may be deliverable to them in accordance with the terms of the
Preferred Securities, including as a result of any conversion, exchange,
redemption, liquidation or other provision of the Debentures, the Other
Documents or the Preferred Securities.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Issuer or any other Person before proceeding against the Guarantor,
protest, notice of nonpayment, notice of dishonor, notice of redemption and all
other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or implied
agreement, covenant, term or condition relating to the Preferred Securities to
be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion any sums payable or the performance by the Issuer of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right, privilege, power
or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.3 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
14
<PAGE> 19
There shall be no obligation of the Holders to give notice to,
or obtain the consent of, the Guarantor with respect to the happening of any of
the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Securities Guarantee Trustee in respect of this Preferred Securities Guarantee
or exercising any trust or power conferred upon the Preferred Securities
Guarantee Trustee under this Preferred Securities Guarantee.
(b) If the Preferred Securities Guarantee Trustee fails to
enforce this Preferred Securities Guarantee, any Holder may institute a legal
proceeding directly against the Guarantor to enforce its rights under this
Preferred Securities Guarantee, without first instituting a legal proceeding
against the Issuer, the Preferred Securities Guarantee Trustee or any other
Person. Notwithstanding the foregoing, if the Guarantor has failed to make a
Guarantee Payment or to perform any of its other obligations under Section 5.1,
a Holder may directly institute a proceeding in the Holder's own name against
the Guarantor for enforcement of this Capital Security Guarantee for the portion
of such Guarantee Payment or the performance of such other obligation to which
such Holder is entitled. The Guarantor waives any right or remedy to require
that any action on this Preferred Securities Guarantee be brought first against
the Issuer or any other person or entity before proceeding directly against the
Guarantor.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all rights, if any, of
the Holders against the Issuer in respect of any amounts paid to such Holders by
the Guarantor under this Preferred Securities Guarantee; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any right that it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Preferred Securities Guarantee, if, at the
time of any such payment, any amounts are due and unpaid under this Preferred
Securities Guarantee. If any amount shall be paid or property delivered to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount or property in trust for the Holders and to pay over such amount or
deliver such property to the Holders entitled thereto.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
15
<PAGE> 20
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, the
Guarantor shall not
(i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect
to, any of the Guarantor's capital stock (which includes
common and preferred stock);
(ii) make any payment of principal, interest or premium, if any, on
or repay or repurchase or redeem any debt securities of the
Guarantor that rank pari passu with or junior in right of
payment to the Debentures;
(iii) make any guarantee payments with respect to any guarantee by
the Guarantor of the debt securities of any subsidiary thereof
or any other party if such guarantee ranks pari passu or
junior in right of payment to the Debentures (other than (a)
dividends or distributions in shares of, or options, warrants
or rights to subscribe for or purchase shares of, common stock
of the Guarantor, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights
plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Preferred Securities
Guarantee and any Other Documents, (d) as a result of a
reclassification of the Guarantor's capital stock or the
exchange or the conversion of one class or series of the
Guarantor's capital stock for another class or series of the
Guarantor's capital stock, (e) the purchase of fractional
interests in shares of the Guarantor's capital stock pursuant
to the conversion or exchange provisions of such capital stock
or the security being converted or exchanged, and (f)
purchases of common stock related to the issuance of common
stock or rights under any of the Guarantor's benefit plans for
its directors, officers or employees or any of the Guarantor's
dividend reinvestment plans)
if at such time (i) there shall have occurred any event of which the Guarantor
has actual knowledge that is, or with the giving of notice or the lapse of time,
or both, would be an Event of Default, (ii) the Guarantor shall be in default
with respect to its payment or other obligations under Section 5.1 of this
Preferred Securities Guarantee or (iii), if the terms of the Debentures provide
for the deferral of the obligation of the Guarantor, as issuer of the Debenture,
to pay interest thereon, whether at the option of the Guarantor or another
Person or otherwise, a notice of deferral has been given and not rescinded or
any interest deferral period shall have commenced and be continuing. [insert or
modify the foregoing provision as appropriate]
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute
an unsecured obligation of the Guarantor and will rank [insert
applicable ranking, i.e., equal to Debentures, subordinate, senior or
otherwise]
16
<PAGE> 21
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i)
full payment of the Redemption or Repayment Price of all Preferred Securities,
(ii) the conversion or exchange of all the Preferred Securities and the full
payment of any related amounts or (iii) full payment of the amounts payable or
delivery of securities or other property deliverable upon liquidation of the
Issuer, in each case, in accordance with the terms of the Agreement.
Notwithstanding the foregoing, this Preferred Securities Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
Holder must restore payment of any sums paid or other property distributed under
the Preferred Securities or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except that
an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence, bad faith or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification
(a) To the fullest extent permitted by applicable law, the
Guarantor agrees to indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by reason
of any act or omission performed or omitted by such Indemnified Person in good
faith in accordance with this Preferred Securities Guarantee and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by this Preferred Securities Guarantee,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, damage or
17
<PAGE> 22
claim incurred by such Indemnified Person by reason of negligence, bad faith or
willful misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law,
reasonable out-of-pocket expenses (including reasonable legal fees) incurred by
an Indemnified Person in defending any claim, demand, action, suit or proceeding
shall, from time to time, be advanced by the Guarantor prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Guarantor of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in Section 8.2(a).
(c) The provisions set forth in this Section 8.2 shall survive
the termination of the Preferred Securities Guarantee and any resignation or
removal of the Preferred Securities Guarantee Trustee.
SECTION 8.3 Compensation
The Guarantor agrees:
(a) to pay to the Preferred Securities Guarantee Trustee from
time to time such compensation as shall be agreed in writing between the Company
and the Preferred Securities Guarantee Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust); and
(b) to reimburse the Preferred Securities Guarantee Trustee
upon its request for reasonable expenses, disbursements and advances incurred or
made by the Preferred Securities Guarantee Trustee in accordance with any
provision of this Preferred Securities Guarantee (including the reasonable
compensation and the expenses and advances of its agents and counsel), except
any such expense or advance as may be attributable to its negligence, willful
misconduct or bad faith.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding.
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Preferred Securities Guarantee may only be amended while any
Preferred Securities are outstanding with the prior approval of the Holders of
at least a Majority in liquidation amount (including the stated amount
18
<PAGE> 23
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all the outstanding Preferred Securities covered by the Preferred
Securities Guarantee. The provisions of Section 12.2 of the Agreement with
respect to meetings of Holders apply to the giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by registered or certified mail, as
follows:
(a) If given to the Preferred Securities Guarantee Trustee, at
the Preferred Securities Guarantee Trustee's mailing address set forth below (or
such other address as the Preferred Securities Guarantee Trustee may give notice
of to the Holders of the Preferred Securities):
-------------------------
-------------------------
New York, NY
------------
Attention: [ ]
------------------
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders):
Apache Corporation
2000 Post Oak Blvd., Suite 100
Houston, Texas 77056
Attention:
-------------------
(c) If given to any Holder, at the address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit
of the Holders and, subject to Section 3.1(a), is not separately transferable
from the Preferred Securities.
19
<PAGE> 24
SECTION 9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 9.6 Counterparts.
The parties may sign any number of copies of this Preferred
Securities Guarantee. Each signed copy shall be an original, but all of them
together represent the same agreement. Any signed copy shall be sufficient proof
of this Preferred Securities Guarantee.
20
<PAGE> 25
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
APACHE CORPORATION
as Guarantor
By:
--------------------------------------
Name:
Title:
-----------------------------------------
as Preferred Securities Guarantee Trustee
By:
--------------------------------------
Name:
Title:
21
<PAGE> 1
EXHIBIT 4.14
FORM OF AMENDED AND RESTATED TRUST AGREEMENT
OF
APACHE TRUST [I/II]
Dated as of _________________
<PAGE> 2
CROSS REFERENCE TABLE(1)
<TABLE>
<CAPTION>
Section of Trust Indenture Act
of 1939, as amended Section of Agreement
<S> <C>
310(a) ................................................................................5.3(a)
310(b) ........................................................................5.3(c), 5.3(d)
310(c) ..........................................................................Inapplicable
311(a) ................................................................................2.2(b)
311(b) ................................................................................2.2(b)
311(c) ..........................................................................Inapplicable
312(a) ................................................................................2.2(a)
312(b) ................................................................................2.2(b)
312(c) ..........................................................................Inapplicable
313.......................................................................................2.3
314(a) ......................................................................2.4, 2.7, 3.6(e)
314(b) ..........................................................................Inapplicable
314(c) ...................................................................................2.5
314(d) ..........................................................................Inapplicable
314(e) ...................................................................................2.5
314(f) ..........................................................................Inapplicable
315(a) .......................................................................3.9(b); 3.10(a)
315(b) ................................................................................2.7(a)
315(c) ................................................................................3.9(a)
315(d) ................................................................................3.9(b)
316(a) ...................................................................................2.6
316(b) ...................................................................................2.6
316(c) ................................................................................3.6(e)
317(a) ................................................................................3.8(h)
317(b) ........................................................................3.8(c); 7.2(a)
318....................................................................................2.1(c)
</TABLE>
- ----------------------------
(1) This Cross-Reference Table does not constitute part of the Agreement
and shall not have any bearing upon the interpretation of any of its
terms or provisions.
<PAGE> 3
Table of Contents
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I.
INTERPRETATION AND DEFINITIONS
Section 1.1 Definitions.................................................................1
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1 Trust Indenture Act; Application............................................8
Section 2.2 Lists Of Holders Of Securities..............................................9
Section 2.3 Reports By The Property Trustee.............................................9
Section 2.4 Periodic Reports To Property Trustee........................................9
Section 2.5 Evidence Of Compliance With Conditions Precedent............................9
Section 2.6 Events Of Default; Waiver..................................................10
Section 2.7 Event Of Default; Notice...................................................12
ARTICLE III.
ORGANIZATION
Section 3.1 Name.......................................................................13
Section 3.2 Office.....................................................................13
Section 3.3 Purposes...................................................................13
Section 3.4 Authority..................................................................13
Section 3.5 Title To Property Of The Trust.............................................14
Section 3.6 Powers And Duties Of The Administrative Trustees...........................14
Section 3.7 Prohibition Of Actions By The Trust And
The trustees...............................................................17
Section 3.8 Powers And Duties Of The Property Trustee..................................18
Section 3.9 Certain Duties And Responsibilities Of The Property
Trustee....................................................................20
Section 3.10 Certain Rights Of Property Trustee.........................................22
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
Section 3.11 Delaware Trustee...........................................................24
Section 3.12 Not Responsible For Recitals Or Issuance Of
Securities.................................................................24
Section 3.13 Duration Of Trust..........................................................24
Section 3.14 Mergers....................................................................24
ARTICLE IV.
SPONSOR
Section 4.1 Sponsor's Purchase Of Common Securities....................................26
Section 4.2 Covenants Of The Sponsor...................................................26
Section 4.3 Rights And Responsibilities Of The Sponsor.................................26
Section 4.4 Right To Proceed...........................................................27
Section 4.5 Expenses...................................................................27
ARTICLE V.
TRUSTEES
Section 5.1 Number Of Trustees.........................................................28
Section 5.2 Delaware Trustee...........................................................29
Section 5.3 Property Trustee; Eligibility..............................................29
Section 5.4 Certain Qualifications Of Administrative Trustees
And Delaware Trustee Generally.............................................30
Section 5.5 Administrative Trustees....................................................30
Section 5.6 Appointment, Removal And Resignation Of Trustees...........................30
Section 5.7 Vacancies Among Trustees...................................................32
Section 5.8 Effect Of Vacancies........................................................32
Section 5.9 Meetings...................................................................33
Section 5.10 Delegation Of Power........................................................33
Section 5.11 Merger, Conversion, Consolidation Or Succession
To Business................................................................33
</TABLE>
ii
<PAGE> 5
ARTICLE VI.
DISTRIBUTIONS
<TABLE>
<S> <C>
Section 6.1 Distributions..............................................................34
ARTICLE VII.
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities....................................34
Section 7.2 Paying Agent and Registrar.................................................37
ARTICLE VIII.
TERMINATION OF TRUST
Section 8.1 Termination Of Trust.......................................................38
ARTICLE IX.
TRANSFER OF INTERESTS
Section 9.1 Transfer Of Securities.....................................................39
Section 9.2 Transfer or Exchange Of Certificates.......................................39
Section 9.3 Deemed Security Holders....................................................40
Section 9.4 Book Entry Interests.......................................................40
Section 9.5 Notices To Clearing Agency.................................................41
Section 9.6 Appointment Of Successor Clearing Agency...................................41
Section 9.7 Definitive Trust Preferred Security Certificates...........................41
Section 9.8 Mutilated, Destroyed, Lost Or Stolen Certificates..........................42
ARTICLE X.
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
Section 10.1 Liability..................................................................42
Section 10.2 Exculpation................................................................43
Section 10.3 Fiduciary Duty.............................................................43
Section 10.4 Indemnification............................................................44
Section 10.5 Outside Businesses.........................................................47
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C>
Section 10.6 Trustees' Fees And Expenses................................................47
ARTICLE XI.
ACCOUNTING
Section 11.1 Fiscal Year................................................................47
Section 11.2 Certain Accounting Matters.................................................47
Section 11.3 Banking....................................................................48
Section 11.4 Withholding................................................................48
ARTICLE XII.
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.................................................................49
Section 12.2 Meetings Of The Holders Of Securities; Action By
Written Consent............................................................51
ARTICLE XIII.
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
Section 13.1 Representations And Warranties Of Property
Trustee....................................................................52
Section 13.2 Representations And Warranties Of Delaware
Trustee....................................................................53
ARTICLE XIV.
MISCELLANEOUS
Section 14.1 Notices....................................................................54
Section 14.2 Governing Law..............................................................55
Section 14.3 Intention Of The Parties...................................................55
Section 14.4 Headings...................................................................55
Section 14.5 Successors And Assigns.....................................................55
Section 14.6 Partial Enforceability.....................................................55
Section 14.7 Entire Agreement...........................................................55
Section 14.8 Remedies...................................................................56
</TABLE>
iv
<PAGE> 7
<TABLE>
<S> <C>
Section 14.9 Counterparts...............................................................56
EXHIBIT A Terms and Conditions of Securities
EXHIBIT A-1 Form of Trust Preferred Security Certificate
EXHIBIT A-2 Form of Common Security Certificate
</TABLE>
v
<PAGE> 8
FORM OF
AMENDED AND RESTATED
TRUST AGREEMENT
OF
APACHE TRUST [I/II]
[date]
AMENDED AND RESTATED TRUST AGREEMENT (the "Agreement") dated and
effective as of ________________, among the Trustees (as defined herein), for
the benefit of the Holders (as defined herein), and the Sponsor (as defined
herein).
WHEREAS, the Trustees and the Sponsor created Apache Trust [I/II]
(the "Trust"), a Delaware business trust under the Business Trust Act (as
defined herein), pursuant to a Trust Agreement dated as of March 13, 2000 (the
"Original Agreement"), and a Certificate of Trust filed with the Secretary of
State of the State of Delaware on March 13, 2000;
WHEREAS, prior to the date hereof, no Securities (as defined
herein) have been issued);
WHEREAS, all of the Trustees and the Sponsor, by this Agreement,
intend to amend and restate each and every term and provision of the Original
Agreement;
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a Delaware business trust under the Business Trust Act and
to constitute this as the governing instrument of the Trust, in consideration of
the mutual covenants herein contained and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
INTERPRETATION AND DEFINITIONS
Section 1.1. Definitions
Unless the context otherwise requires or unless specified in an
Exhibit hereto:
(a) each capitalized term used in this Agreement but not defined
in the preamble has the respective meaning assigned to it in this Section 1.1;
(b) a term defined anywhere in this Agreement has the same
meaning throughout;
(c) all references to "the Agreement " or "this Agreement " are
to this Agreement as modified, supplemented or amended from time to time, and
include Exhibits to this Agreement;
(d) all references in this Agreement to Articles, Sections and
Exhibits are to Articles and Sections of and Annexes and Exhibits to this
Agreement unless otherwise specified;
<PAGE> 9
(e) a term defined in the Trust Indenture Act, either directly or
by reference therein, has the same meaning when used in this Agreement unless
otherwise defined in this Agreement;
(f) a reference to the singular includes the plural and vice
versa;
(g) the words "include," "includes" and "including" shall be
deemed to be followed by the phrase "without limitation;"
(h) all accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles as in effect at the time of computation; and
(i) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Article, Section, Exhibit or other subdivision.
"Administrative Trustee" has the meaning set forth in Section
5.1.
"Affiliate" has the meaning given to that term in Rule 405 of the
Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent or Registrar.
"Authorized Newspaper" means a daily newspaper, in the English
language, customarily published on each day that is a Business Day in The City
of New York and of general circulation in The City of New York.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or its nominee,
ownership and transfers of which shall be maintained and made through book
entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than Saturday, Sunday or any
day on which banking institutions and trust companies in The City of New York
are permitted or required by any applicable law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801, et seq., as it may be amended from time to time,
or any successor legislation.
"Certificate" means a Common Security Certificate or a Trust
Preferred Security Certificate.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depository
for the Trust Preferred Securities and in whose name or in the name of a nominee
of that organization shall be registered
2
<PAGE> 10
a Global Certificate and which shall undertake to effect book entry transfers
and pledges of the Trust Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency. Unless otherwise specified in the Terms and Conditions, DTC
shall be the initial Clearing Agency.
"Closing Date" means the "Closing Time" and each "Date of
Delivery", if any, under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted and existing under the Exchange Act, or, if at any
time after the execution of this instrument such commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Security" has the meaning set forth in Section 7.1.
"Common Securities Guarantee" means the guarantee agreement dated
as of the date hereof and executed and delivered by the Sponsor and ____________
_______________, as trustee, for the benefit of the Holders of the Common
Securities, as such agreement may be modified, supplemented or amended from time
to time.
"Common Security Certificate" means a definitive certificate in
fully registered form representing a Common Security, which shall be prepared by
the Sponsor and a specimen of which shall be substantially in the form attached
hereto as Exhibit A-2.
"Company Indemnified Person" means (a) any Administrative
Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers,
directors, shareholders, members, partners, employees, representatives or agents
of any Administrative Trustee or any Affiliate of any Administrative Trustee; or
(d) any officer, employee or agent of the Trust or its Affiliates.
"Corporate Trust Office" means the office of the Property Trustee
in The City of New York at which the corporate trust business of the Property
Trustee shall, at any particular time, be principally administered, which office
at the date of execution of this Agreement is located at 450 West 33rd Street,
15th Floor, New York, New York 10001, Attention: Capital Markets Fiduciary
Services.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Creditor" has the meaning set forth in Section 4.5.
"Debenture Event of Default" means an event of default under the
Debentures.
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<PAGE> 11
"Debenture Issuer" means Apache Corporation, a Delaware
corporation, or any successor entity, in its capacity as issuer of the
Debentures under the Indenture.
"Debenture Trustee" means ___________________, a ________
banking corporation as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the debt securities to be purchased by the
Trust specified in the Terms and Conditions.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Direction" by a Person means a written direction signed:
(a) if the Person is a natural person, by that Person; or
(b) in any other case, in the name of such Person by one or more
Authorized Officers of that Person.
"Direct Action" has the meaning set forth in Section 3.8(e).
"Distribution" has the meaning set forth in the Terms and
Conditions.
"DTC" means The Depository Trust Company or any successor entity.
"Event of Default" means a Debenture Event of Default or any
Other Document Event of Default has occurred and is continuing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" means (a) the Property Trustee,
(b) the Delaware Trustee, (c) any Affiliate of the Property Trustee or the
Delaware Trustee, and (d) any officers, directors, shareholders, members,
partners, employees, representatives, custodians, nominees or agents of the
Property Trustee or the Delaware Trustee.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" or "holder" means a Person in whose name a Security is
registered, such Person being a beneficial owner within the meaning of the
Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture specified in the Terms and
Conditions, among the Debenture Issuer and the Debenture Trustee under which the
Debentures are issued, as such indenture may be modified, supplemented or
amended from time to time, and includes any indenture supplemental thereto.
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<PAGE> 12
"Investment Company" means an entity required to register as an
investment company under the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount" with respect to Securities of
any class means, except as provided elsewhere in this Agreement or by the Trust
Indenture Act, 50% of the aggregate liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus any
accrued and unpaid Distributions to the date upon which the voting or written
consent percentages are determined) of all outstanding Securities of such class.
"Officers' Certificate" means, with respect to (A) the Sponsor, a
certificate signed by the Chairman of the Board, a Vice Chairman, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Sponsor and (B) any other Person, a certificate
signed by any two Authorized Officers of such Person. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Agreement shall comply with Section 314 of the Trust Indenture Act and
shall include:
(a) a statement that the individuals signing the Officers'
Certificate have read the covenant or condition and the definitions relating
thereto;
(b) a brief statement of the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate are based;
(c) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as, in such individual's
opinion, is necessary to enable such individual to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of such
individuals, such condition or covenant has been complied with.
"Other Document" means any instrument or agreement constituting
Trust Property, other than the Debentures, specified in the Terms and
Conditions.
"Other Document Event of Default" means an event of default under
any Other Document, if any, that is specified in the Terms and Conditions as an
Other Document Event of Default.
"Outstanding," with respect to any Securities, means, as of the
date of determination, all Securities theretofore executed and delivered under
this Agreement, except:
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<PAGE> 13
(a) Trust Preferred Securities theretofore cancelled by the
Property Trustee or delivered to the Property Trustee for cancellation or Common
Securities theretofore cancelled by an Administrative Trustee or delivered to
the Administrative Trustees for cancellation;
(b) Securities for whose payment, repayment or redemption money
in the necessary amount and currency has been theretofore deposited with the
Property Trustee or any Paying Agent for the Holders of such Securities,
provided that if such Securities are to be repaid or redeemed, notice of such
repayment or redemption has been duly given pursuant to this Agreement;
(c) Securities which have been paid or in exchange for or in lieu
of which other securities have been executed and delivered pursuant to this
Agreement; and
(d) if the Securities are convertible or exchangeable into other
securities or other property, Securities converted or exchanged as contemplated
by this Agreement if such other securities have or other property has been
either (i) delivered to the Holders of such Securities in accordance with this
Agreement or (ii) deposited with and are held by the Property Trustee or any
Paying Agent in trust for the Holders of such Securities in accordance with this
Agreement, provided in the case of this clause (ii) that any applicable notice
of conversion or exchange has been duly given to the Holders thereof pursuant to
this Agreement;
provided, however, that in determining whether the Holders of the requisite
liquidation amount of outstanding Trust Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Trust Preferred Securities owned by the Sponsor or any Administrative Trustee or
any Affiliate of the Sponsor or any Administrative Trustee shall be disregarded
and deemed not to be outstanding, except that (i) in determining whether any
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Trust Preferred
Securities that such Trustee actually knows to be so owned shall be so
disregarded and (ii) the foregoing shall not apply at any time when all of the
outstanding Trust Preferred Securities are owned by the Sponsor, one or more of
the Trustees and/or any such Affiliate. Trust Preferred Securities so owned
which have been pledged in good faith may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees the
pledgee's right so to act with respect to such Trust Preferred Securities and
that the pledgee is not the Sponsor or any Affiliate of the Sponsor.
"Paying Agent" has the meaning set forth in Section 7.2(a).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
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<PAGE> 14
"Quorum" means, with respect to the Administrative Trustees, a
majority of the Administrative Trustees or, if there are only two Administrative
Trustees, both of them.
"Registrar" has the meaning set forth in Section 7.2(b).
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee
with direct responsibility for the Property Trustee's obligations under this
Agreement and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of that officer's
knowledge of and familiarity with the particular subject.
"Securities" means the Common Securities and the Trust Preferred
Securities.
"Securities Guarantees" means the Common Securities Guarantee and
the Trust Preferred Securities Guarantee.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
"Sponsor" means Apache Corporation, a Delaware corporation, or
any successor entity, in its capacity as sponsor of the Trust.
"State" means any of the 50 states in the United States or the
District of Columbia.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(b)(ii).
"Successor Entity" has the meaning set forth in Section
3.14(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
3.8(f)(ii).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"10% in liquidation amount" with respect to either the Common
Securities or the Trust Preferred Securities means, except as provided elsewhere
in this Agreement or by the Trust Indenture Act, 10% or more of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus any accrued and unpaid Distributions
to the date upon which the voting percentages are determined) of all such
outstanding Common Securities or Trust Preferred Securities.
"Terms and Conditions" means the terms and conditions of the
Common Securities and the Trust Preferred Securities determined by the Sponsor
and executed by the Administrative Trustees in accordance with Section 7.1(b)
and attached hereto as Exhibit A.
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<PAGE> 15
"Trustee" or "Trustees" means each Person who has signed this
Agreement as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Trust Preferred Security" has the meaning set forth in Section
7.1(a).
"Trust Preferred Security Beneficial Owner" means, with respect
to a Book Entry Interest, a Person who is the beneficial owner of such Book
Entry Interest, as reflected on the books of the Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly as
a Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Trust Preferred Security Certificate" means a certificate
representing a Trust Preferred Security, which shall be prepared by the Sponsor
and a specimen of which shall be substantially in the form attached hereto as
Exhibit A-1.
"Trust Preferred Securities Guarantee" means the guarantee
agreement dated as of the date hereof executed and delivered by the Sponsor and
The Chase Manhattan Bank, as trustee, for the benefit of the Holders, as such
agreement may be modified, supplemented or amended from time to time.
"Trust Property" means (a) the Debentures, (b) any Other
Documents, (c) any cash on deposit in, or owing to, the Property Trust Account,
and (d) all proceeds and rights in respect of the foregoing or any other
property and assets for the time being held or deemed to be held by the Property
Trustee pursuant to this Agreement.
"Underwriting Agreement" means the underwriting agreement for the
offering and sale of Trust Preferred Securities, including any amendments or
supplements thereto.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
trustee for the purposes of the Trust Indenture Act.
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<PAGE> 16
(c) If and to the extent that any provision of this Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) Any application of the Trust Indenture Act to this Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 2.2. Lists of Holders of Securities.
(a) In accordance with Section 312(a) of the Trust Indenture Act,
the Administrative Trustees, on behalf of the Trust, shall provide to the
Property Trustee:
(i) within 14 days after each March 15 and September 15 of
each year or such other dates as are set forth in the Terms and
Conditions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders of the Securities
("List of Holders") as of such date, provided that the Administrative
Trustees, on behalf of the Trust, shall not be obligated to provide such
List of Holders at any time that the Property Trustee is the Registrar
or the List of Holders does not differ from the most recent List of
Holders given to the Property Trustee by the Administrative Trustees on
behalf of the Trust; and
(ii) at any other time, within 30 days of receipt by the
Trust of a written request by the Property Trustee for a List of Holders
as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as
current a form as is reasonably practicable, all information contained
in the Lists of Holders given to it or which it receives in the capacity
as Paying Agent or Registrar (if acting in such capacity), provided that
the Property Trustee may destroy any List of Holders previously given to
it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, commencing with the May
15 that first occurs following the issuance of the Securities, the Property
Trustee shall provide to the Holders of the Trust Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Property Trustee shall also comply with the requirements of Section 313(d)
of the Trust Indenture Act.
Section 2.4 Periodic Reports to Property Trustee.
The Administrative Trustees, on behalf of the Trust, shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 (if any) and the compliance certificate required by
Section 314 of the Trust Indenture Act in the form, in the manner and at the
times required by Section 314 of the Trust Indenture Act.
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<PAGE> 17
Section 2.5 Evidence of Compliance With Conditions Precedent.
Each of the Sponsor and the Administrative Trustees, on behalf of
the Trust, shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Agreement that
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers' Certificate.
Section 2.6 Events of Default; Waiver.
(a) The Holders of not less than a Majority in liquidation amount
of Trust Preferred Securities may, by vote or written consent, on behalf of the
Holders of all of the Trust Preferred Securities, waive any past Event of
Default in respect of the Trust Preferred Securities and its consequences,
provided that, if the corresponding Debenture Event of Default or Other Document
Event of Default:
(i) is not waivable under the Debentures or any Other
Document, if any, as the case may be, the Event of Default under this
Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount of the holders of the Debentures or more than a
majority of other interests in such Other Document, as the case may be
(a "Super Majority"), to be waived under the Indenture or such Other
Document, as the case may be, the Event of Default under this Agreement
may only be waived by the vote of the relevant Super Majority in
liquidation amount of Holders of the Trust Preferred Securities.
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Agreement and the
Trust Securities, as permitted by the Trust Indenture Act. Upon such waiver, any
such Debenture Event of Default or Other Document Event of Default shall cease
to exist, and any Event of Default with respect to the Trust Preferred
Securities arising therefrom shall be deemed to have been cured, for every
purpose of this Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Trust Preferred Securities
or impair any right consequent thereon. Any waiver by the Holders of the Trust
Preferred Securities of an Event of Default with respect to the Trust Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Agreement without any further act, vote, or
consent of the Holders of the Common Securities.
The Holders of a Majority in liquidation amount of the Trust
Preferred Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Property Trustee or
to direct the exercise of any trust or power conferred upon the Property
Trustee, including the right to direct the Property Trustee to exercise the
remedies available to it as a holder of the Debentures and any Other Documents;
provided, however, that (subject to the provisions of Section 3.9) the Property
Trustee shall have the right to decline to follow any such direction if the
Property Trustee shall determine that the action so
10
<PAGE> 18
directed would be unjustly prejudicial to the Holders not taking part in such
direction or if the Property Trustee, being advised by competent legal counsel,
determines that the action or proceeding so directed may not lawfully be taken
or if the Property Trustee, in good faith, by its board of directors or
trustees, executive committee, or a trust committee of directors or trustees,
and/or Responsible Officers, shall determine that the action or proceeding so
directed would involve the Property Trustee in personal liability.
(b) The Holders of a Majority in liquidation amount of the Common
Securities may, by vote or consent, on behalf of the Holders of all of the
Common Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Debentures or Other Document,
except where the Holders of the Common Securities are deemed to have
waived such Event of Default under this Agreement as provided elsewhere
in this Section 2.6, the Event of Default under this Agreement shall
also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under this Agreement as provided below
in this Section 2.6, such Event of Default under this Agreement may only
be waived by the vote or consent of the Holders of at least the
proportion in aggregate liquidation amount of the Common Securities that
the relevant Super Majority represents of the aggregate principal amount
of the Debentures outstanding;
provided further, that, notwithstanding (i) or (ii) above, each Holder of the
Common Securities shall be deemed to have waived any such Event of Default and
all Events of Default with respect to the Common Securities and its consequences
if all Events of Default with respect to the Trust Preferred Securities have
been cured, waived or otherwise eliminated, and until such Events of Default
have been so cured, waived or otherwise eliminated, the Property Trustee will be
deemed to be acting solely on behalf of the Holders of the Trust Preferred
Securities and only the Holders of the Trust Preferred Securities will have the
right to direct the Property Trustee in accordance with the terms of the
Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu of
Sections 316(a)(1)(A) and 316 (a)(1)(B) and of the Trust Indenture Act and such
Sections 316(a)(1)(A) and 316 (a)(1)(B) of the Trust Indenture Act are hereby
expressly excluded from this Agreement and the Securities, as permitted by the
Trust Indenture Act. Subject to the foregoing provisions of this Section 2.6(b),
upon such waiver, any such Debenture Event of Default or Other Document Event of
Default shall cease to exist, and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been cured for every
purpose of this Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common Securities or
impair any right consequent thereon.
(c) A waiver of a Debenture Event of Default or Other Document
Event of Default by the Property Trustee at the direction of the Holders of the
Trust Preferred Securities constitutes a waiver of the corresponding Event of
Default with respect to the Trust Preferred Securities under this Agreement. Any
waiver of a Debenture Event of Default or Other Document Event of Default by the
Property Trustee at the direction of the Holders of the Trust
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<PAGE> 19
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Common Securities of the corresponding Event of Default under this
Agreement with respect to the Common Securities for all purposes of this
Agreement without further act, vote or consent of the Holders of the Common
Securities. The foregoing provisions of this Section 2.6(c) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Agreement and the
Securities, as permitted by the Trust Indenture Act.
Section 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after a
Responsible Officer of the Property Trustee obtains actual knowledge of the
occurrence of a default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults known to the Property Trustee
other than defaults that have been cured or waived before the giving of such
notice (the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to include Debenture Events of Default and Other Document Events of
Default, if any, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on, or in the delivery of any cash, securities or other property in
exchange for or upon conversion or redemption of or otherwise in accordance with
the terms of, any Debenture or Other Document or the Securities, the Property
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Property Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 501(1) and 501(2) of the Indenture;
(ii) any failure to deliver any cash, securities or other
property in exchange for or upon conversion or redemption of or
otherwise in accordance with the terms of the Debentures or Other
Documents or the Securities; and
(iii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the
Property Trustee shall have actual knowledge.
(c) The Sponsor and the Administrative Trustee shall file
annually within 30 days after May 15 of each year, commencing with the May 15
that first occurs following the issuance of the Securities, with the Property
Trustee in accordance with Section 314(a)(4) of the Trust Indenture Act a
certification as to whether or not they are in compliance with all the
conditions applicable to them under this Agreement.
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ARTICLE III.
ORGANIZATION
Section 3.1 Name.
The Trust is named "Apache Trust [I/II]," as such name may be
modified from time to time by the Administrative Trustees. The Administrative
Trustees shall give prompt written notice of any change in the name of the Trust
to the Delaware Trustee, the Property Trustee and the Holders of the Securities.
The Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Administrative Trustees.
Section 3.2 Office.
The address of the principal office of the Trust is c/o Apache
Corporation, One Post Oak Central, 2000 Post Oak Boulevard, Suite 100, Houston,
Texas 77056-4400. On ten Business Days prior written notice to the Property
Trustee and Holders of the Securities, the Administrative Trustees may designate
another principal office.
Section 3.3 Purposes.
The exclusive purposes and functions of the Trust are (a) to
issue and sell the Securities and use the gross proceeds from such sale to
acquire the Debentures and any Other Documents specified in the Terms and
Conditions, (b) to enter into or hold each Other Document, if any, to be entered
into or held by the Trust in accordance with the Terms and Conditions and (c) to
engage in only those other activities necessary or incidental thereto. The Trust
shall not borrow money, issue debt or reinvest proceeds derived from
investments, pledge any of its assets, execute mortgages or otherwise undertake
(or permit to be undertaken) any activity that would cause the Trust not to be
classified for United States federal income tax purposes as a grantor trust. It
is the intent of the parties to this Agreement for the Trust to be classified as
a grantor trust for United States federal income tax purposes under Subpart E of
Subchapter J of the Code, pursuant to which the owners of the Trust Preferred
Securities and the Common Securities will be the owners of the Trust for United
States federal income tax purposes, and such owners will include directly in
their gross income the income, gain, deduction or loss of the Trust as if the
Trust did not exist. By the acceptance of this Agreement neither the Trustees
nor the Sponsor or the Holders of the Trust Preferred Securities or Common
Securities will take any position for United States federal income tax purposes,
or permit the Trust to make any election, which is contrary to the
classification of the Trust as a grantor trust.
Section 3.4 Authority.
Subject to the limitations provided in this Agreement and to the
specific duties of the Property Trustee, the Administrative Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Administrative Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust and an action taken by
the Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the Trustees
acting on behalf of the Trust, no Person shall be required to inquire into the
authority of the Trustees to bind the
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Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Agreement.
Section 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Trust
Property and the Property Trustee Account or as otherwise provided in this
Agreement, legal title to all assets of the Trust shall be vested in the Trust.
A Holder shall not have legal title to any part of the assets of the Trust, but
shall have an undivided beneficial interest in the assets of the Trust.
Section 3.6 Powers and Duties of the Administrative Trustees.
The Administrative Trustees shall have the power, duty and
authority, which shall be exclusive except as otherwise set forth herein, and
are hereby authorized and directed to cause the Trust to engage in the following
activities:
(a) execute, deliver, issue and sell the Trust Preferred
Securities and the Common Securities in accordance with this Agreement;
provided, however, that the Trust may issue no more than one series of Trust
Preferred Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a simultaneous
issuance of both Trust Preferred Securities and Common Securities on each
Closing Date;
(b) in connection with the issue and sale of the Trust Preferred
Securities:
(i) assist in filing with the Commission any registration
statement and any prospectus relating to the registration statement on
Form S-3 prepared by the Sponsor, including any amendments or
supplements thereto, pertaining to the Trust Preferred Securities and to
take any other action relating to the registration and sale of the Trust
Preferred Securities under federal and state securities laws;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order
to qualify or register all or part of the Trust Preferred Securities in
any State in which the Sponsor has determined to qualify or register
such Trust Preferred Securities for sale;
(iii) execute and file an application, prepared by the
Sponsor, to the New York Stock Exchange, Inc. or any other national
stock exchange or the Nasdaq Stock Market's National Market for listing
or quotation of any Trust Preferred Securities;
(iv) execute and file with the Commission any registration
statement on Form 8-A, including any amendments thereto, prepared by the
Sponsor, relating to the registration of the Trust Preferred Securities
under Section 12(b) or 12(g) of the Exchange Act;
(v) execute and enter into and deliver the Underwriting
Agreement providing for the sale of the Trust Preferred Securities;
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(vi) execute and deliver letters, documents or instruments
with DTC and other Clearing Agencies relating to the Trust Preferred
Securities;
(vii) execute the Terms and Conditions and attach them to
this Agreement; and
(viii) execute, enter into or file any other instrument,
agreement, certificate or other document negotiated or prepared by the
Sponsor on behalf of the Trust, including any Other Document to be
entered into or held by the Trust, and to take such other action, in
each case as the Administrative Trustees or any of them deem necessary
or incidental (and not otherwise covered by the power of the other
Trustees hereunder or under the Securities), in connection with the
issuance, the sale or the terms of any Securities and the investment by
the Trust in the Trust Property, including any remarketing, auction or
similar agreements.
(c) acquire the Debentures and any Other Documents with the
proceeds of the sale of the Trust Preferred Securities and the Common
Securities; provided, however, that the Administrative Trustees shall cause
legal title to the Debentures and any Other Documents to be acquired by the
Trust on a Closing Date to be held of record in the name of the Property Trustee
for the benefit of the Trust and the Holders of the Trust Preferred Securities
and the Holders of Common Securities;
(d) give the Sponsor and the Property Trustee prompt written
notice of the occurrence of any event that, in accordance with this Agreement,
may require that a notice be sent to Holders, including events that may result
in an Event of Default, or any redemption, conversion or exchange of or deferral
of distributions on the Securities;
(e) establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, any repayments, any redemptions, any conversions
and any exchanges, and to issue relevant notices to the Holders of Trust
Preferred Securities and Holders of Common Securities as to such actions and
applicable record dates;
(f) take all actions and perform such duties as may be required
of the Administrative Trustees pursuant to the terms of the Securities and this
Agreement;
(g) to the fullest extent permitted by law, bring or defend, pay,
collect, compromise, arbitrate, resort to legal action, or otherwise adjust
claims or demands of or against the Trust ("Legal Action"), unless pursuant to
Section 3.8(e) the Property Trustee has the exclusive power to bring such Legal
Action;
(h) employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
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(j) give the certificate required by Section 314(a)(4) of the
Trust Indenture Act to the Property Trustee, which certificate may be executed
by any Administrative Trustee;
(k) incur expenses that are necessary, appropriate, convenient or
incidental to carry out any of the purposes of the Trust;
(l) act as, or appoint another Person to act as, Registrar and
transfer agent for the Securities;
(m) take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Trust Preferred
Securities or to enable the Trust to effect the purposes for which the Trust was
created;
(n) take any action, not inconsistent with this Agreement or with
applicable law, that the Administrative Trustees determine in their discretion
to be necessary or incidental in carrying out the activities of the Trust,
including:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that
the Debentures will be treated as indebtedness of the Debenture Issuer
for United States federal income tax purposes,
provided, in each case, that such action does not adversely affect the interests
of Holders;
(o) take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed on behalf of the Trust;
(p) execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters which
the Administrative Trustees deem necessary or incidental to the foregoing.
The Administrative Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes of the Trust
set out in Section 3.3. None of the Administrative Trustees shall take any
action that is inconsistent with the purposes of the Trust set forth in Section
3.3.
Subject to this Section 3.6, the Administrative Trustees shall
have none of the powers or the authority of the Property Trustee set forth in
Section 3.8. No permissive power or authority available to the Administrative
Trustees shall be construed to be a duty.
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Any expenses incurred by the Administrative Trustees pursuant to
this Section 3.6 shall be reimbursed by the Sponsor.
Section 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees shall not cause the Trust to, engage
in any activity other than as required or authorized by this Agreement. In
particular, the Trust shall not and the Trustees shall not cause the Trust to:
(i) invest any proceeds received by the Trust from holding the
Debentures or other Trust Property, but shall distribute all such
proceeds to Holders of Securities pursuant to the terms of this
Agreement and of the Securities;
(ii) acquire or vary any assets other than as expressly provided
herein;
(iii) possess Trust Property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness for borrowed money,
other than loans represented by the Debentures or other Trust Property;
(v) possess any power or otherwise act in such a way as to vary
the Trust assets or the terms of the Securities in any way whatsoever;
(vi) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests therein,
including to Holders, except as provided in this Agreement;
(vii) take or consent to any action that would result in the
placement of a lien on any Trust Property;
(viii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(ix) other than as provided in this Agreement, (A) direct or
exercise any remedy, trust or power with respect to the Debentures, or
any other instrument or agreement constituting Trust Property, (B) waive
any past default that is waivable under the Indenture or any Other
Document, (C) exercise any right to rescind or annul any declaration
that the principal of or other amounts payable or other property
deliverable under the Debentures or amounts payable or other property
deliverable under any Other Document shall be due and payable, or (D)
consent to any amendment, modification or termination of the Indenture
or the Debentures or any Other Document, in the case of each of clauses
(A) through (D), (x) without the approval of a Majority in liquidation
amount with respect to the Securities or, where a consent under the
Indenture or Other Document, as the case may be, would require the
consent of each holder of Debentures or other interests, as the case may
be, affected thereby, of each Holder of Securities, and (y) unless the
Trust shall have received an opinion of nationally recognized
independent tax counsel to the effect that the Trust will not, as a
result of such action, fail to be classified as a grantor trust for such
purposes.
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Section 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Trust Property shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Trust and the Holders of the Securities. The right, title and interest of
the Property Trustee to the Trust Property shall vest automatically in each
Person who may hereafter be appointed as Property Trustee in accordance with
Section 5.6. Such vesting and cessation of title shall be effective whether or
not conveyancing documents with regard to the Trust Property have been executed
and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Trust Property to the Administrative Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee) or,
except in accordance with the provisions of this Agreement and the Securities,
any other Person.
(c) The Property Trustee shall:
(i) establish and maintain one or more segregated
non-interest bearing trust accounts (collectively, the "Property Trustee
Account") in the name of and under the exclusive control of the Property
Trustee on behalf of the Trust and the Holders and, upon the receipt of
funds in respect of the Trust Property, deposit such funds into the
Property Trust Account and, upon the receipt of funds distributed to the
Property Trustee in respect of the Trust Property held by the Property
Trustee, deposit such funds into the Property Trustee Account, and make
distributions of such funds out of the Property Trust Account to the
Holders of the Trust Preferred Securities and the Holders of the Common
Securities in accordance with the terms of this Agreement and the
Securities. Funds in the Property Trustee Account shall be held
uninvested until disbursed in accordance with this Agreement and the
Securities. The Property Trustee Account shall be one or more accounts
maintained with one or more banking institutions (which may include the
Property Trustee if it qualifies hereunder) the rating on whose
long-term unsecured indebtedness is rated at least "A" or above by a
"nationally recognized statistical rating organization," as that term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
(ii) upon receipt of any Trust Property on each Closing Date
and the receipt of any property other than funds distributed to the
Property Trustee in respect of Trust Property held by the Property
Trustee, hold such other property in safe keeping and make distributions
of such other property to the Holders of the Trust Preferred Securities
and the Holders of the Common Securities in accordance with the terms of
this Agreement and the Securities; and
(iii) engage in such ministerial activities as shall be
necessary or incidental to hold the Trust Property in accordance with
the provisions hereof and to effect distributions on and any redemption,
repayment, conversion or exchange of the Trust Preferred Securities or
the Common Securities and the distribution of all or any part of the
Trust Property to Holders in liquidation of the Trust or otherwise, in
each case in accordance with the terms of this Agreement and the
Securities.
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(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities and this Agreement.
(e) Subject to Section 3.9(a), the Property Trustee shall take
any Legal Action which arises out of or in connection with an Event of Default
of which a Responsible Officer of the Property Trustee has actual knowledge or
the Property Trustee's duties and obligations under this Agreement, the Business
Trust Act or the Trust Indenture Act; provided, however, that if the Property
Trustee fails to enforce its rights under the Debentures or any Other Document
after a Holder of Trust Preferred Securities has made a written request, such
Holder of Trust Preferred Securities may, to the fullest extent permitted by
applicable law, institute a legal proceeding against the Debenture Issuer or any
obligor under any Other Document, as the case may be, without first instituting
any legal proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to (i) the failure of the Debenture
Issuer to pay interest or any premium on or principal of the Debentures on the
date such interest or principal is otherwise payable (including, in the case of
repayment or redemption, on the repayment or redemption date) or, if the
Debentures are exchangeable or convertible, the failure of the Debenture Issuer
to convert or exchange the Debentures into or for other property in accordance
with the terms thereof, or (ii) the failure of any obligor under any Other
Document to pay or deliver cash, securities or other property in accordance with
the terms of such Other Document, then, in the case of (i) and (ii), a Holder of
Trust Preferred Securities may directly institute a proceeding (a "Direct
Action") for enforcement of payment or delivery to such Holder of the principal
of or interest on or other property deliverable upon the exchange or conversion
of Debentures having a principal amount equal to the aggregate liquidation
amount of the Trust Preferred Securities of such holder on or after the due date
specified in the Debentures or any cash, securities or other property that is
required to be paid or delivered pursuant to such Other Document on or after the
due date therefor equal to the percentage of outstanding securities represented
by such Holder's Securities. In connection with such Direct Action, the rights
of the Holders of Common Securities will be subordinated to the rights of such
Holders of Trust Preferred Securities. Except as provided in the preceding
sentences, the Holders of Trust Preferred Securities will not be able to
exercise directly any other remedy available to the holders of the Debentures or
Other Documents.
(f) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely dissolved and wound up and
the proceeds of the liquidation distributed to the Holders of Securities
and the Trust is terminated, in accordance with the terms of the
Securities and this Agreement; or
(ii) a successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6 (a "Successor
Property Trustee").
(g) The Property Trustee shall have the legal power to exercise all of the
rights, powers and privileges of the Trust as holder of Debentures under the
Indenture and as beneficiary of or party to any Other Document and, if an Event
of Default actually known to a Responsible Officer of the Property Trustee
occurs and is continuing, the Property Trustee shall,
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for the benefit of Holders of the Securities, enforce the rights of the Trust as
holder of the Debentures and as beneficiary of or party to any Other Document
subject, in each case, to the rights of the Holders pursuant to the terms of the
Securities and this Agreement.
(h) The Property Trustee shall be authorized to undertake any
actions set forth in Section 317(a) of the Trust Indenture Act.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers or the authority of the Administrative
Trustees set forth in Section 3.6.
(j) For such time as the Property Trustee is the Paying Agent,
the Property Trustee may authorize one or more Persons to act as additional
Paying Agents and to make distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities. Any such
additional Paying Agent may be removed by the Property Trustee, at any time, so
long as the Property Trustee remains as Paying Agent and a successor Paying
Agent or additional Paying Agents may be (but are not required to be) appointed
at any time by the Property Trustee.
(k) The Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
Section 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing or waiver of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Agreement and no implied covenants shall be read into this
Agreement against the Property Trustee. In case an Event of Default has occurred
(that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, its bad faith or its own willful misconduct, except
that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Agreement and the Property Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement
against the Property Trustee; and
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(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Agreement; provided, that in the case of
any such certificates or opinions that by any provision hereof
are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Agreement;
(ii) the Property Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Agreement;
(iv) no provision of this Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Agreement or if indemnity reasonably satisfactory to the Property
Trustee against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Trust Property
and the Property Trustee Account shall be to deal with such property in
a manner that is similar to the manner in which the Property Trustee
deals with similar property for its fiduciary accounts generally,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Agreement, the Business Trust Act and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Trust Property or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree in
writing with the Sponsor; money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Trustee Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law;
and
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(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the Sponsor
with their respective duties under this Agreement, nor shall the
Property Trustee be liable for any default or misconduct of the
Administrative Trustees or the Sponsor.
Section 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the
Administrative Trustees contemplated by this Agreement shall be
sufficiently evidenced by a Direction or an Officers' Certificate;
(iii) whenever in the administration of this Agreement, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of negligence or bad faith on its part,
request and conclusively rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Sponsor or
the Administrative Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with competent legal
counsel or other competent experts and the advice or written opinion of
such counsel and experts with respect to legal matters or advice within
the scope of such legal counsel's or experts' area of expertise shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
accordance with such advice or opinion. Such counsel may be counsel to
the Sponsor or any of its Affiliates, and may include any of its
employees; and the Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Agreement from
any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement at
the request or direction of any Holder, unless (A) such Holder shall
have provided to the Property Trustee security and indemnity, reasonably
satisfactory to the Property Trustee, against the reasonable costs,
expenses (including reasonable attorneys' fees and expenses and the
reasonable expenses of the Property Trustee's agents, nominees or
custodians) and liabilities that might be incurred by it in complying
with such request or direction, including such reasonable advances as
may be requested by the Property Trustee and (B) the Property Trustee
has
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obtained the legal opinions, if any, required by the applicable provisions of
this Agreement, provided that nothing contained in this Section 3.10(a)(vi)
shall be taken to relieve the Property Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested in it by
this Agreement;
(vii) the Property Trustee shall be under no obligation to
conduct an investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys, and the Property
Trustee shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action, and no third party
shall be required to inquire as to the authority of the Property Trustee
to so act or as to its compliance with any of the terms and provisions
of this Agreement, both of which shall be conclusively evidenced by the
Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (A) may request instructions from the
Holders (which instructions may only be given by the Holders of the same
proportion in liquidation amount of the Securities as would be entitled
to direct the Property Trustee under the terms of the Securities in
respect of such remedy, right or action), (B) may refrain from enforcing
such remedy or right or taking such other action until such instructions
are received, and (C) shall be protected in conclusively relying on or
acting in accordance with such instructions, provided that -------- the
Property Trustee shall not take any action unless it shall have obtained
the legal opinions required by the applicable provisions of this
Agreement;
(xi) except as otherwise expressly provided by this
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Agreement; and
(xii) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Agreement.
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(b) No provision of this Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
Section 3.11 Delaware Trustee.
Notwithstanding any other provision of this Agreement other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Trustees (except as required under the Business Trust Act) described in this
Agreement. Except as set forth in Section 5.2, the Delaware Trustee shall be a
Trustee for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Business Trust Act. In the event that the Delaware Trustee
shall at any time be required to take any action or perform any duty hereunder,
the Delaware Trustee shall be entitled to the benefits of Section 3.9(b)(ii) and
(viii) and Section 3.10. No implied covenants or obligations shall be read into
this Agreement against the Delaware Trustee.
Section 3.12 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Agreement and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Agreement or the Securities.
Section 3.13 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions hereof,
shall [dissolve on _____________________] [have perpetual existence].
Section 3.14 Mergers.
(a) The Trust may not consolidate, amalgamate, merge or convert
with or into, or be replaced by, or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to, any Person, except for
the sole purpose of changing its domicile and as set forth in Section 3.14(b)
and (c).
(b) Subject to Section 3.14(a), the Trust may, at the request of
the Sponsor, with the consent of the Administrative Trustees or, if there are
more than two, a majority of the Administrative Trustees and without the consent
of the Holders, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge or convert with or into, or be replaced by a trust organized
as such under the laws of any State; provided that:
(i) the successor entity (the "Successor Entity") expressly
assumes all of the obligations of the Trust under any agreement to which
the Trust is a party and either:
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(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Trust Preferred Securities
other securities having substantially the same terms as the
Trust Preferred Securities (the "Successor Trust Preferred
Securities"), so long as the Successor Trust Preferred
Securities rank the same as the Trust Preferred Securities
rank with respect to distributions of Trust Property and
payments upon liquidation, redemption, repayment and otherwise
and substitutes for the Common Securities other securities
having substantially the same terms as the Common Securities
(the "Successor Common Securities"), so long as the Successor
Common Securities rank the same as the Common Securities rank
with respect to distributions of Trust Property and payments
upon liquidation, redemption, repayment and otherwise;
(ii) the Successor Entity has a trustee that possesses
substantially the same powers and duties as the Property Trustee;
(iii) the Trust Preferred Securities or any Successor
Securities will be listed, quoted or included for trading, or any
Successor Securities will be listed, quoted or included for trading upon
notification of issuance if applicable, on any national securities
exchange or with another system on which the Trust Preferred Securities
are then listed, quoted or included for trading;
(iv) such merger, conversion, consolidation, amalgamation or
replacement does not cause the Trust Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization;
(v) such merger, conversion, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences and
privileges of the Holders of the Securities (including any Successor
Securities and any Successor Trust Preferred Common Securities) in any
material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust; (vii) prior to such merger, conversion,
consolidation, amalgamation or replacement, the Sponsor has received an
opinion of a nationally recognized independent counsel to the Trust
experienced in such matters to the effect that:
(A) such merger, conversion, consolidation,
amalgamation or replacement does not adversely affect the
rights, preferences and privileges of the Holders of the
Securities (including any Successor Securities) in any
material respect;
(B) following such merger, conversion, consolidation,
amalgamation or replacement, neither the Trust nor the
Successor Entity will be required to register as an Investment
Company; and
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(C) following such merger, conversion, consolidation,
amalgamation or replacement, the Trust (or the Successor
Entity) will continue to be classified as a grantor trust for
United States federal income tax purposes;
(viii) the Sponsor, directly or indirectly, owns all of the
Successor Common Securities and guarantees the obligations of such
Successor Entity under the Successor Trust Preferred Securities at least
to the extent provided by the Securities Guarantees.
(ix) the Property Trustee has received an Officers'
Certificate from the Sponsor and an opinion of counsel, each to the
effect that all conditions precedent to the transaction as set forth in
this Agreement have been satisfied.
(c) Notwithstanding Section 3.14(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation amount of the Securities,
consolidate, amalgamate, merge or convert with or into, or be replaced by any
other Person or permit any other Person to consolidate, amalgamate or merge with
or into, or replace it if such consolidation, amalgamation, merger, conversion,
or replacement would cause the Trust or Successor Entity to be classified as
other than a grantor trust for United States federal income tax purposes.
ARTICLE IV.
SPONSOR
Section 4.1 Sponsor's Purchase of Common Securities.
On each Closing Date, the Sponsor shall purchase all of the
Common Securities issued by the Trust, in an amount at least equal to 3.0% of
the Securities of the Trust issued on such Closing Date, at the same time as the
Trust Preferred Securities are sold.
Section 4.2 Covenants of the Sponsor.
For so long as the Trust Preferred Securities remain outstanding,
the Sponsor shall:
(i) cause the Trust to remain a statutory business trust and
not to voluntarily dissolve, wind up, liquidate, or terminate, except as
permitted by this Agreement;
(ii) use its commercially reasonable efforts to ensure that
the Trust will not be (A) an Investment Company or (B) classified as
other than a grantor trust for United States federal income tax
purposes.
Section 4.3 Rights and Responsibilities of the Sponsor.
In connection with the issue and sale of the Trust Preferred
Securities and so long as the Securities are outstanding, the Sponsor shall have
the right and responsibility (which shall be exclusive except as otherwise set
forth herein) to engage in the following activities:
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(a) determine the Terms and Conditions;
(b) prepare, execute and file on behalf of the Trust with the
Commission a registration statement on Form S-3 and any prospectus or prospectus
supplement relating to such registration statement in relation to the Trust
Preferred Securities, including any amendments thereto;
(c) if deemed necessary or advisable by the Sponsor, determine
the States in which to take appropriate action to qualify or register for sale
all or part of the Trust Preferred Securities and to do any and all such acts on
behalf of the Trust, and prepare, execute and file any documents on behalf of
the Trust as the Sponsor deems necessary or advisable in order to comply with
the applicable laws of any such States;
(d) if deemed necessary or advisable by the Sponsor, prepare,
execute and file on behalf of the Trust an application to the New York Stock
Exchange or any other national stock exchange or the Nasdaq National Market for
listing upon notice of issuance of any Trust Preferred Securities;
(e) if necessary, prepare, execute and file on behalf of the
Trust with the Commission, a registration statement on Form 8-A relating to the
registration of the Trust Preferred Securities under Section 12(b) or 12(g) of
the Exchange Act, including any amendments thereto; and
(f) negotiate the Underwriting Agreement and any other instrument
or agreement which, in the opinion of the Sponsor, the Trust should be a party
to, bound by or a beneficiary of, including any remarketing, auction or exchange
agreement.
Section 4.4 Right to Proceed.
(a) The Sponsor acknowledges the rights of Holders to institute a
Direct Action as set forth in Section 3.8(e) hereto.
Section 4.5 Expenses.
In connection with the offering, sale and issuance of the
Debentures or Other Documents to the Property Trustee and in connection with the
sale of the Securities by the Trust, the Sponsor shall:
(a) pay all costs and expenses relating to the offering, sale and
issuance of the Debentures or Other Documents, including commissions to the
underwriters payable pursuant to the Underwriting Agreement and compensation of
the Trustee under the Indenture in accordance with the provisions of the
Indenture;
(b) be responsible for and shall pay all debts and obligations
(other than with respect to the Securities) and all costs and expenses of the
Trust (including, but not limited to, costs and expenses relating to the
organization, maintenance and dissolution of the Trust), the offering, sale and
issuance of the Securities (including commissions to the underwriters in
connection therewith), the fees and expenses (including reasonable counsel fees
and expenses) of
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the Property Trustee, the Delaware Trustee and the Administrative Trustees
(including any amounts payable under Article X of this Agreement), the costs and
expenses relating to the operation of the Trust, including, without limitation,
costs and expenses of accountants, attorneys, statistical or bookkeeping
services, expenses for printing and engraving and computing or accounting
equipment, Paying Agents, Registrars, transfer agents, duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing, and disposition of Trust assets
and the enforcement by the Property Trustee of the rights of the Holders;
(c) be primarily liable for any indemnification obligations
arising under Section 10.4 with respect to this Agreement; and
(d) pay any and all taxes (other than United States withholding
taxes attributable to the Trust or its assets) and all liabilities, costs and
expenses with respect to such taxes of the Trust.
The Sponsor's obligations under this Section 4.5 shall be for the
benefit of, and shall be enforceable by, any Person to whom such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.5 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor. The Sponsor agrees to execute such additional agreements as
may be necessary or desirable in order to give full effect to the provisions of
this Section 4.5.
ARTICLE V.
TRUSTEES
Section 5.1 Number of Trustees.
The number of Trustees initially shall be four (4), and:
(a) at any time before the issuance of any Securities, the
Sponsor may, by written instrument, increase or decrease the number of Trustees;
and
(b) after the issuance of any Securities, the number of Trustees
may be increased or decreased by the Holders of a Majority in liquidation amount
of the Common Securities; provided, however, that, the number of Trustees shall
in no event be less than two (2), provided further that (1) one Trustee shall
meet the requirements of Section 5.2(a) or (b); (2) there shall be at least one
Trustee who is an employee or officer of, or is affiliated with the Sponsor (an
"Administrative Trustee"); and (3) one Trustee shall be the Property Trustee for
so long as this Agreement is required to qualify as an indenture under the Trust
Indenture Act, and such Property Trustee may also serve as Delaware Trustee if
it meets the applicable requirements.
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Section 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be:
(a) a natural person who is a resident of the State of Delaware;
or
(b) if not a natural person, an entity which has its principal
place of business in the State of Delaware, and otherwise meets the requirements
of applicable law, provided that, if the Property Trustee has its principal
place of business in the State of Delaware and otherwise meets the requirements
of applicable law, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application.
(c) The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attn: Corporate Trust Department
Section 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee for so long as this Agreement is required to qualify as an
Indenture under the Trust Indenture Act, which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Commission to act as an institutional trustee under the Trust
Indenture Act, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section 5.3(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
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(d) The Trust Preferred Securities Guarantee and the Indenture
[Describe others if applicable] shall be deemed to be specifically described in
this Agreement and the Indenture for purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services
Section 5.4 Certain Qualifications of Administrative Trustees and Delaware
Trustee Generally.
Each Administrative Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural person
who is at least 21 years of age or a legal entity that shall act through one or
more Authorized Officers.
Section 5.5 Administrative Trustees.
The initial Administrative Trustees shall be:
Thomas Mitchell
Matthew Dundrea
(a) Except as otherwise expressly set forth in this Agreement and
except if a meeting of the Administrative Trustees is called in accordance with
Section 5.9 with respect to any matter over which the Administrative Trustees
have power to act, any power of the Administrative Trustees may be exercised by,
or with the consent of, any one such Administrative Trustee.
(b) Unless otherwise determined by the Administrative Trustees in
accordance with Section 5.9, and except as otherwise required by the Business
Trust Act or applicable law, any Administrative Trustee is authorized to execute
on behalf of the Trust any documents which the Administrative Trustees have the
power and authority to cause the Trust to execute pursuant to Section 3.6.
Section 5.6 Appointment; Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) after the issuance of any Securities, by the Holders of
a Majority in liquidation amount of the Common Securities voting as a
class at a meeting of the
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Holders of the Common Securities unless an Event of Default shall have
occurred and be continuing, and
(iii) if an Event of Default shall have occurred and be
continuing, after the issuance of the Securities, with respect to:
(A) the Administrative Trustees, by vote or written
consent of the Holders of a Majority in liquidation amount of
the Common Securities acting separately as a class; and
(B) the Property Trustee and the Delaware Trustee, by
vote or written consent of the Holders of a Majority in
liquidation amount of the Trust Preferred Securities, acting
separately as a class.
(b) (i) The Property Trustee shall not be removed in accordance
with Section 5.6(a) until a Successor Property Trustee possessing the
qualifications to act as Property Trustee under Sections 5.2 and 5.3 has
been appointed and has accepted such appointment by written instrument
executed by such Successor Property Trustee and delivered to the
Administrative Trustees, the Delaware Trustee (if the removed Property
Trustee is not also the Delaware Trustee) and the Sponsor.
(ii) The Delaware Trustee shall not be removed in accordance
with Section 5.6(a) until a successor possessing the qualifications to
act as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor
Delaware Trustee") has been appointed and has accepted such appointment
by written instrument executed by such Successor Delaware Trustee and
delivered to the Administrative Trustees, the Property Trustee (if the
removed Delaware Trustee is not also the Property Trustee) and the
Sponsor.
(c) A Trustee appointed to office shall hold office until such
Trustee's successor shall have been appointed or until such Trustee's death,
bankruptcy, dissolution, termination, removal or resignation. Any Trustee may
resign from office (without need for prior or subsequent accounting) by an
instrument in writing signed by the Trustee and delivered to the other Trustees,
the Sponsor, the Trust and, after an Event of Default has occurred and is
continuing, the Holders of Trust Preferred Securities, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:
(i) no such resignation of the Property Trustee shall be
effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor, the Delaware Trustee, the resigning
Property Trustee and, after an Event of Default has occurred
and is continuing, the Holders of Trust Preferred Securities;
or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Securities and the Trust is terminated
pursuant to the terms of this Agreement and the Securities;
and
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(ii) no such resignation of the Delaware Trustee shall be
effective until a Successor Delaware Trustee has been appointed and has
accepted such appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Sponsor, the Property
Trustee, the resigning Delaware Trustee and, after an Event of Default
has occurred and is continuing, the Holders of Trust Preferred
Securities.
(d) The Holders of the Common Securities or, if an Event of
Default has occurred and is continuing after the issuance of any Securities, the
Holders of Trust Preferred Securities shall use all reasonable efforts to
promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as
the case may be, if the Property Trustee or the Delaware Trustee delivers an
instrument of resignation in accordance with this Section 5.6.
(e) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in this
Section 5.6 within 60 days after delivery to the other Trustees, the Sponsor,
the Trust and, after an Event of Default has occurred and is continuing, the
Holders of the Trust Preferred Securities of an instrument of resignation, the
resigning Property Trustee or Delaware Trustee, as applicable, may petition any
court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon, after prescribing such
notice, if any, as it may deem proper, appoint a Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be liable for
the acts or omissions to act of any Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(g) At the time of the resignation or removal of the Property
Trustee or the Delaware Trustee, the Sponsor shall pay to such Trustee any
amounts that may be owed to such Trustee pursuant to Section 10.4.
Section 5.7 Vacancies Among Trustees.
If a Trustee ceases to hold office for any reason and the number
of Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees
is increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by the Administrative Trustees or, if
there are more than two Administrative Trustees, a majority of the
Administrative Trustees shall be conclusive evidence of the existence of such
vacancy. The vacancy shall be filled with a Trustee appointed in accordance with
Section 5.6.
Section 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to dissolve, terminate or annul the Trust. Whenever a
vacancy among the Administrative Trustees shall occur, until such vacancy is
filled by the appointment of an Administrative Trustee in accordance with
Section 5.6, the Administrative Trustees in office, regardless of their number,
shall have all the powers granted to the Administrative Trustees and shall
discharge all the duties imposed upon the Administrative Trustees by this
Agreement.
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Section 5.9 Meetings.
If there is more than one Administrative Trustee, meetings of the
Administrative Trustees shall be held from time to time upon the call of any
Administrative Trustee. Regular meetings of the Administrative Trustees may be
held at a time and place fixed by resolution of the Administrative Trustees.
Notice of any in-person meetings of the Administrative Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meetings of the Administrative Trustees or any committee thereof
shall be hand delivered or otherwise delivered in writing (including by
facsimile, with a hard copy by overnight courier) not less than 24 hours before
a meeting. Notices shall contain a brief statement of the time, place and
anticipated purposes of the meeting. The presence (whether in person or by
telephone) of an Administrative Trustee at a meeting shall constitute a waiver
of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity
on the ground that the meeting has not been lawfully called or convened. Unless
provided otherwise in this Agreement, any action of the Administrative Trustees
may be taken at (i) a meeting by vote of a majority of the Administrative
Trustees present (whether in person or by telephone) and eligible to vote with
respect to such matter, provided that a Quorum is present, or (ii) without a
meeting and without prior notice by the unanimous written consent of the
Administrative Trustees. In the event there is only one Administrative Trustee,
any and all action of such Administrative Trustee shall be evidenced by a
written consent of such Administrative Trustee.
Section 5.10 Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6.
(b) The Administrative Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set
forth herein.
Section 5.11 Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with which either may
be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Property Trustee or the Delaware Trustee, as the case
may be, shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of the Property Trustee or the Delaware Trustee, as
the case may be, shall be the successor of the Property Trustee or the Delaware
Trustee, as the case may be, hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto; provided
however, that such successor shall promptly notify the Sponsor (except that a
Successor Delaware Trustee shall file an appropriate amendment to the
Certificate of Trust of the Trust, if required by the Business Trust Act).
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ARTICLE VI.
DISTRIBUTIONS
Section 6.1 Distributions.
If and to the extent that the Trust receives income on any
Debenture or pursuant to any Other Document whether in cash, securities or other
property as proceeds from the redemption, repayment, conversion, exchange,
maturity or other disposition of any Debenture or pursuant to any Other Document
(including any interest or premium on or the principal of the Debentures, any
securities or other property received in exchange or upon conversion of the
Debentures, or any cash, securities or other property received under any Other
Document), then, unless otherwise specified in this Agreement, the Property
Trustee shall distribute such income, cash, securities and other property to the
Holders of the Securities in accordance with the terms of the Securities they
hold as set forth in this Agreement, including the Terms and Conditions. The
Property Trustee shall make the distributions on the Trust Preferred Securities
and the Common Securities in accordance with the relative rights, preferences
and privileges that apply to each of those classes of Securities as set forth in
this Agreement.
ARTICLE VII.
ISSUANCE OF SECURITIES
Section 7.1 General Provisions Regarding Securities
(a) The Administrative Trustees shall, on behalf of the Trust,
issue one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in the
Terms and Conditions (the "Trust Preferred Securities") and one class of common
securities representing undivided beneficial interests in the assets of the
Trust having such terms as are set forth in the Terms and Conditions (the
"Common Securities"). The Trust shall issue no securities or other interests in
the assets of the Trust other than the Trust Preferred Securities and the Common
Securities.
(b) The terms of the Securities shall be established by the
Sponsor and set forth in the Terms and Conditions. The Terms and Conditions
shall be executed by each of the Administrative Trustees, attached to this
Agreement as Exhibit A and set forth the following to the extent not provided
by, or in lieu or modification of, the other provisions of this Agreement:
(1) the designation of the Trust Preferred Securities and the designation
of the Common Securities;
(2) any limit upon the number and/or aggregate liquidation amount of the
Trust Preferred Securities or the Common Securities to be executed and
delivered under this Agreement (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of such class pursuant to Section 9.2,
9.7 or 9.8, upon repayment or redemption in part of any Security or
upon surrender in part of any Security for conversion or exchange into
other securities pursuant to its terms);
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(3) the amounts payable out of the assets of the Trust to, and any other
rights of the Holders upon, the liquidation of the Trust and any
provisions for the dissolution and liquidation of the Trust, including
the obligation, if any, of the Sponsor, the Trust or any other party
to liquidate the Trust and any terms and conditions of such
liquidation;
(4) the date or dates, or the method or methods, if any, by which such
date or dates shall be determined, on which the liquidation amount and
premium, if any, of the Securities are distributable;
(5) the rate or rates at which income on the Trust Property shall be
distributed to Holders, or the method or methods, if any, by which
such rate or rates are to be determined, the date or dates, if any,
from which such income shall accrue or the method or methods, if any,
by which such date or dates are to be determined, the date or dates,
if any, on which such income shall be payable, including any deferral
provisions, and the record date or dates, if any, for the income
payable on the Securities on any such income payment date, the notice,
if any, to Holders regarding the determination of income on a floating
rate Security and the manner of giving such notice, and the basis upon
which interest shall be calculated if other than that of a 360-day
year of twelve 30-day months;
(6) whether the Distributions on the Securities will be cumulative and, if
so, the dates from which and upon which distributions will accumulate
and be payable;
(7) whether, in addition to or other than the Borough of Manhattan, The
City of New York, the place or places where the distributions on the
Securities may be made, the Securities may be surrendered for
registration of transfer, exchange, redemption, repayment, conversion
or upon maturity, and notices or demands to or upon the Trust in
respect of the Securities and this Agreement may be served;
(8) whether the Trust is obligated or entitled to redeem or purchase any
of such Securities at its option, pursuant to any sinking fund or
analogous provision or at the option of any Holder thereof or
otherwise, and, if so, the date or dates on which, the period or
periods within which, the price or prices at which and the other terms
and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing, auction or other secondary sales of
Securities so redeemed or purchased;
(9) the denominations in which the Securities shall be issuable if other
than denominations of $1,000 and any integral multiple;
(10) whether the Securities will be convertible into and/or exchangeable
for other securities or property or both, and if so, the terms and
conditions upon which the Securities will be so convertible or
exchangeable;
(11) any voting rights granted to the Holders of the Trust Preferred
Securities or the Common Securities in addition to or in lieu of the
voting rights set forth elsewhere in this Agreement;
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(12) if other than U.S. dollars, the currency in which cash distributions
on the Securities shall be payable;
(13) if cash distributions with respect to the Securities are to be
payable, at the election of the Trust or a Holder thereof or
otherwise, in a currency other than that in which the Securities are
stated to be payable, the date or dates on which, the period or
periods within which, and the other terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the currency in which the Securities are stated
to be payable and the currency in which the Securities or any of them
are to be paid pursuant to such election;
(14) whether any distributions may be determined with reference to an
index, formula or other method or methods (which index, formula or
method or methods may be based, without limitation, on one or more
currencies, commodities, equity indices or other indices), and, if so,
the terms and conditions upon which and the manner in which such
amounts shall be determined and paid or payable;
(15) the title and amount of the Debentures and any Other Documents to be
acquired with the proceeds of the sale of the Securities;
(16) the ranking of the Trust Preferred Securities and the Common
Securities; and
(17) any other rights, preferences, restrictions, limitations or conditions
relative to the Trust Preferred Securities or the Common Securities
permitted by Delaware law and any deletions from or modifications or
additions to this Agreement, including any Events of Default or
covenants of any of the parties hereto, in respect of the Securities,
provided no covenant in this Agreement may be modified without the
consent of the party giving such covenant.
(c) The Certificates shall be in the forms prepared by the
Sponsor and signed on behalf of the Trust by one Administrative Trustee. Such
signature shall be the manual or facsimile signature of any present or any
future Administrative Trustee. In case any Administrative Trustee who shall have
signed any of the Securities shall cease to be such Administrative Trustee
before the Certificates so signed shall be delivered by the Trust, such
Certificates nevertheless may be delivered as though the person who signed such
Certificates had not ceased to be such Administrative Trustee; and any
Certificate may be signed on behalf of the Trust by any persons who, at the
actual date of execution of such Certificate, shall be an Administrative Trustee
of the Trust, although at the date of the execution and delivery of the
Agreement any such person was not such an Administrative Trustee. Certificates
shall be printed, lithographed or engraved or may be produced in any other
manner as is reasonably acceptable to the Administrative Trustee, as evidenced
by such individual's execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Administrative Trustee that signs such Certificates may deem appropriate, or
as may be required to comply with any law or with any rule or regulation of any
stock exchange on which Securities may be listed, or to conform to usage.
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A Trust Preferred Security Certificate shall not be valid until
authenticated by the manual signature of an authorized officer of the Property
Trustee. Such signature shall be conclusive evidence that a Trust Preferred
Security Certificate has been authenticated under this Agreement.
Each Trust Preferred Security Certificate shall be dated the
date of its authentication by the Property Trustee. Each Common Security
Certificate shall be dated the date it is executed by an Administrative Trustee.
Upon a written order of the Trust signed by one Administrative
Trustee, the Property Trustee shall authenticate Trust Preferred Security
Certificates, provided the aggregate liquidation amount or number of the Trust
Preferred Securities shall not exceed the aggregate liquidation amount or
number, as the case may be, of Trust Preferred Securities designated in the
Terms and Conditions, as such liquidation amount or number, as the case may be,
may be reduced by redemptions, repayments, exchanges, conversions or liquidating
distributions.
The Property Trustee may appoint an authenticating agent
acceptable to the Administrative Trustees to authenticate Trust Preferred
Security Certificates. An authenticating agent may authenticate Trust Preferred
Security Certificates whenever the Property Trustee may do so. Each reference in
this Agreement to authentication by the Property Trustee includes authentication
by such agent. An authenticating agent has the same rights as the Property
Trustee to deal with the Sponsor or an Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of
the Securities shall constitute a contribution to the capital of the Trust and
shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Agreement, the Securities so issued shall be deemed to be validly issued, fully
paid and, subject to Section 10.1(b), non-assessable.
(f) Every Person, by virtue of having become a Holder or a Trust
Preferred Security Beneficial Owner in accordance with the terms of this
Agreement, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Agreement.
Section 7.2 Paying Agent and Registrar.
In the event that the Trust Preferred Securities are not in
book-entry only form:
(a) The Trust shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where the Trust Preferred Securities may
be presented for payment ("Paying Agent"), and any such Paying Agent shall
comply with Section 317(b) of the Trust Indenture Act. The Administrative
Trustees on behalf of the Trust may appoint the Paying Agent and may appoint one
or more additional paying agents in such other locations as it shall determine.
The term "Paying Agent" includes any additional paying agent. The Administrative
Trustees on behalf of the Trust may change any Paying Agent without prior notice
to any Holder. The Administrative Trustees on behalf of the Trust shall notify
the Property Trustee of the name and address of any Paying Agent not a party to
this Agreement. If the Administrative Trustees on behalf of the Trust fail to
appoint or maintain another entity as Paying Agent, the Property
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Trustee shall act as such. The Administrative Trustees on behalf of the Trust or
any of its Affiliates (including the Sponsor) may act as Paying Agent. The
Property Trustee at its Corporate Trust Office shall initially act as Paying
Agent for the Trust Preferred Securities and the Common Securities.
(b) The Trust shall maintain in the Borough of Manhattan, The
City of New York, an office or agency where Trust Preferred Securities may be
presented for registration of transfer or exchange ("Registrar"). The Registrar
shall keep a register of the Trust Preferred Securities and of their transfer or
exchange. The Administrative Trustees on behalf of the Trust may appoint the
Registrar and may appoint one or more co-registrars in such other locations as
it shall determine. The term "Registrar" includes any such additional registrar.
The Administrative Trustees on behalf of the Trust may change any Registrar or
co-registrar without prior notice to any Holder. The Administrative Trustees on
behalf of the Trust shall notify the Property Trustee of the name and address of
any Agent not a party to this Agreement. If the Administrative Trustees on
behalf of the Trust fail to appoint or maintain another entity as Registrar, the
Property Trustee shall act as such. The Trust or any of its Affiliates
(including the Sponsor) may act as Registrar. The Administrative Trustees on
behalf of the Trust shall act as Registrar for the Common Securities.
(c) Notwithstanding Sections 3.6(b)(vi) and 3.6(l), the Trust
initially appoints the Property Trustee as Registrar for the Trust Preferred
Securities and authorizes it to execute and deliver letters, documents and
instruments with DTC and other Clearing Agencies relating to the Trust Preferred
Securities.
ARTICLE VIII.
TERMINATION OF TRUST
Section 8.1 Termination of Trust.
(a) The Trust shall dissolve and its affairs shall be wound up
upon the first of the following to occur:
(i) (other than in connection with a merger, consolidation or
similar transaction not prohibited by this Agreement or any Trust
Property) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor; or the revocation of the
Sponsor's charter and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(ii) upon the entry of a decree of judicial dissolution of
the Trust;
(iii) when all the Securities shall have been called for
redemption, repayment, conversion or exchange and the amounts necessary
for redemption, repayment, conversion or exchange thereof shall have
been distributed to the Holders in accordance with the terms of this
Agreement and the Securities;
(iv) upon the liquidation of the Trust and the distribution
to the Holders of all amounts they are required to receive in accordance
with the terms of this Agreement and the Securities;
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(v) the expiration of the term of the Trust provided in
Section 3.14 of this Agreement; and
(vi) any other event specified in the Terms and Conditions.
(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a) and upon completion of the winding-up of the
Trust, an Administrative Trustee shall file a certificate of cancellation of the
Certificate of Trust of the Trust with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 4.4 and Article X shall survive the
termination of the Trust.
ARTICLE IX.
TRANSFER OF INTERESTS
Section 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Agreement and in the
terms of the Securities. To the fullest extent permitted by law, any transfer or
purported transfer of any Security not made in accordance with this Agreement
shall be null and void.
(b) Subject to this Article IX and the Terms and Conditions,
Trust Preferred Securities shall be freely transferable.
(c) Subject to this Article IX, the Sponsor and any Related Party
may only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
Section 9.2 Transfer or Exchange of Certificates.
The Registrar shall provide for the registration of Certificates
and of transfers or exchanges of Certificates, which shall be effected without
charge but only upon payment (with such indemnity as the Administrative Trustees
may require) in respect of any tax or other government charges that may be
imposed in relation to it. The Trust will not be required to register or cause
to be registered the transfer of its trust preferred securities after they have
been converted, exchanged, repaid, redeemed or called for redemption. Upon
surrender for registration of transfer or exchange of any Certificate at the
Corporate Trust Office of the Property Trustee, the applicable Registrar shall
cause one or more new Certificates to be issued
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in the name of the designated transferee or transferees or the party requesting
the exchange, as the case may be. Every Certificate surrendered for registration
of transfer or exchange shall be accompanied by a written instrument of transfer
or exchange in form satisfactory to the applicable Registrar and duly executed
by the Holder or such Holder's attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
canceled by the applicable Registrar. A transferee of a Certificate and the
recipient of one or more Certificates issued in exchange for cancelled
Certificates shall be entitled to the rights and subject to the obligations of a
Holder hereunder upon the receipt by such transferee or recipient of a
Certificate or Certificates duly executed by an Administrative Trustee and, in
the case of a Trust Preferred Security Certificate, authenticated by the
Property Trustee. By acceptance of a Certificate, each transferee shall be
deemed to have agreed to be bound by this Agreement.
Section 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder of
such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
Section 9.4 Book Entry Interests.
Unless otherwise specified in the Terms and Conditions, the Trust
Preferred Securities Certificates, on original issuance, shall be issued in the
form of one or more, fully registered, global Trust Preferred Security
Certificates (each a "Global Certificate"), to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Trust. Each such Global Certificate
shall initially be registered on the books and records of the Trust in the name
of Cede & Co., the nominee of DTC, and no Trust Preferred Security Beneficial
Owner will receive a definitive Trust Preferred Security Certificate
representing such Trust Preferred Security Beneficial Owner's interests in any
Global Certificate, except as provided in Section 9.7. Except for the definitive
Trust Preferred Security Certificates issued to the Trust Preferred Security
Beneficial Owners pursuant to Section 9.7 or in accordance with the Terms and
Conditions:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
(b) the Trust, the Trustees and any Agent shall be entitled to
deal with the Clearing Agency for all purposes of this Agreement (including the
payment of distributions on any Global Certificate and receiving approvals,
votes or consents hereunder) as the Holder of the Trust Preferred Securities and
the sole holder of any Global Certificate and shall have no obligation to the
Trust Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Agreement other than the Terms and
Conditions, the provisions of this Section 9.4 shall control; and
(d) the rights of the Trust Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be limited to
those established by law and
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agreements between the Trust Preferred Security Beneficial Owners and the
Clearing Agency and/or the Clearing Agency Participants to receive and transmit
payments and other distributions on the Global Certificates to such Clearing
Agency Participants. DTC will make book entry transfers among the Clearing
Agency Participants; provided, that, solely for the purposes of determining
whether the Holders of the requisite amount of Trust Preferred Securities have
voted on any matter provided for in this Agreement, the Trustees may
conclusively rely on, and shall be protected in relying on, any written
instrument (including a proxy) delivered to the Trustees by the Clearing Agency
setting forth the Trust Preferred Security Beneficial Owners' votes or assigning
the right to vote on any matter to any other Persons either in whole or in part.
Section 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Trust Preferred
Security Holders is required under this Agreement, unless and until definitive
fully registered Trust Preferred Security Certificates shall have been issued to
the Trust Preferred Security Beneficial Owners pursuant to Section 9.7 or
otherwise, the Administrative Trustees shall give all such notices and
communications specified herein to be given to the Trust Preferred Security
Holders to the Clearing Agency, and shall have no notice obligations to the
Trust Preferred Security Beneficial Owners.
Section 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Trust Preferred Securities, the
Administrative Trustees may, in their sole discretion, appoint a successor
Clearing Agency with respect to such Trust Preferred Securities.
Section 9.7 Definitive Trust Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Trust Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Administrative Trustees elect after consultation with the
Sponsor to terminate the book-entry system through the Clearing Agency with
respect to the Trust Preferred Securities, then:
(1) definitive fully registered Trust Preferred Security
Certificates shall be prepared and executed by the Administrative
Trustees and authenticated by the Property Trustee on behalf of
the Trust with respect to such Trust Preferred Securities; and
(2) upon surrender of any Global Certificate by the Clearing
Agency, accompanied by registration instructions, the
Administrative Trustees shall cause definitive fully registered
Trust Preferred Securities Certificates to be executed, and the
Property Trustee shall cause such Trust Preferred Securities
Certificates to be authenticated and delivered to Trust Preferred
Security Beneficial Owners in
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accordance with the instructions of the Clearing Agency. Neither
the Trustees nor the Trust shall be liable for any delay in
delivery of such instructions and each of them may conclusively
rely on and shall be protected in relying on, said instructions
of the Clearing Agency. The definitive fully registered Trust
Preferred Security Certificates shall be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrative Trustees, as evidenced by their
execution thereof, and may have such letters, numbers or other
marks of identification or designation and such legends or
endorsements as the Administrative Trustees and the Property
Trustee may deem appropriate, or as may be required to comply
with any law or with any rule or regulation made pursuant thereto
or with any rule or regulation of any stock exchange on which
Trust Preferred Securities may be listed, or to conform to usage.
Section 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificate shall be surrendered to the
Administrative Trustees, or if the Administrative Trustees shall receive
evidence to their satisfaction of the destruction, loss or theft of any
Certificate; and (b) there shall be delivered to the Administrative Trustees and
the Property Trustee such security or indemnity as may be required by them to
keep each of the Trustees and the Trust harmless, then, in the absence of notice
that such Certificate shall have been acquired by a protected purchaser, any
Administrative Trustee on behalf of the Trust shall execute and deliver, and, in
the case of a Trust Preferred Securities Certificate, the Property Trustee shall
authenticate, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the
Administrative Trustees and the Property Trustee may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith.
Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
ARTICLE X.
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
Section 10.1 Liability.
(a) Except as expressly set forth in this Agreement, the
Debentures, any other instrument or agreement, the Securities Guarantees and the
terms of the Securities, the Sponsor shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities, which shall be made solely from assets of the Trust; or
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(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Sponsor, as the Debenture Issuer, shall be liable for all
of the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the
Holders of the Trust Preferred Securities shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
Section 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Agreement or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Property Trustee, negligence), bad faith or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders of Securities might properly be paid.
Section 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified
Person has duties (including fiduciary duties) and liabilities relating thereto
to the Trust or to any other Covered Person, an Indemnified Person acting under
this Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Agreement. The provisions
of this Agreement, to the extent that they restrict the duties and liabilities
of an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
any Covered Persons and any Indemnified Person; or
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(ii) whenever this Agreement or any other instrument or
agreement contemplated herein or therein provides that an Indemnified
Person shall act in a manner that is, or provides terms that are, fair
and reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Agreement or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is permitted
or required to make a decision:
(i) in its "sole discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to consider such
interests and factors as it desires, including its own interests, and
shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this
Agreement or by applicable law.
Section 10.4 Indemnification.
(a) (i) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right
of the Trust) by reason of the fact that he is or was a Company
Indemnified Person against expenses (including reasonable attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall
not, of itself, create a presumption that the Company Indemnified Person
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(ii) The Sponsor shall indemnify, to the fullest extent
permitted by law, any Company Indemnified Person who was or is a party
or is threatened to be made a
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party to any threatened, pending or completed action or suit by or in
the right of the Trust to procure a judgment in its favor by reason of
the fact that he is or was a Company Indemnified Person against expenses
(including reasonable attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust and except that
no such indemnification shall be made in respect of any claim, issue or
matter as to which such Company Indemnified Person shall have been
adjudged to be liable to the Trust unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for
such expenses which such Court of Chancery or such other court shall
deem proper.
(iii) Any indemnification under paragraphs (i) and (ii) of
this Section 10.4(a) (unless ordered by a court) shall be made by the
Sponsor only as authorized in the specific case upon a determination
that indemnification of the Company Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be made (1)
by the Administrative Trustees by a majority vote of a Quorum consisting
of such Administrative Trustees who were not parties to such action,
suit or proceeding, (2) if such a Quorum is not obtainable, or, even if
obtainable, if a Quorum of disinterested Administrative Trustees so
directs, by independent legal counsel in a written opinion, or (3) by
the Common Security Holder of the Trust.
(iv) Expenses (including reasonable attorneys' fees)
incurred by a Company Indemnified Person in defending a civil, criminal,
administrative or investigative action, suit or proceeding referred to
in paragraphs (i) and (ii) of this Section 10.4(a) shall be paid by the
Sponsor in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
Company Indemnified Person to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
Sponsor as authorized in this Section 10.4(a). Notwithstanding the
foregoing, no advance shall be made by the Sponsor if a determination is
reasonably and promptly made (i) by the Administrative Trustees by a
majority vote of a Quorum of disinterested Administrative Trustees, (ii)
if such a Quorum is not obtainable, or, even if obtainable, if a Quorum
of disinterested Administrative Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common Security Holder
of the Trust, that, based upon the facts known to the Administrative
Trustees, independent legal counsel or Common Security Holder at the
time such determination is made, such person acted in bad faith or in a
manner that such person did not believe to be in or not opposed to the
best interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or had
reasonable cause to believe his conduct was unlawful. In no event shall
any advance be made in instances where the Administrative Trustees,
independent legal counsel or Common Security Holder reasonably determine
that such person deliberately breached such person's duty to the Trust
or its Common or Trust Preferred Security Holders.
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(v) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other paragraphs of this Section 10.4(a)
shall not be deemed exclusive of any other rights to which those seeking
indemnification and advancement of expenses may be entitled under any
agreement, vote of shareholders or disinterested directors of the
Sponsor or Trust Preferred Security Holders of the Trust or otherwise,
both as to action in his official capacity and as to action in another
capacity while holding such office. All rights to indemnification under
this Section 10.4(a) shall be deemed to be provided by a contract
between the Sponsor and each Company Indemnified Person who serves in
such capacity at any time while this Section 10.4(a) is in effect. Any
repeal or modification of this Section 10.4(a) shall not affect any
rights or obligations then existing.
(vi) The Sponsor or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Company Indemnified
Person against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not
the Sponsor would have the power to indemnify him against such liability
under the provisions of this Section 10.4(a).
(vii) For purposes of this Section 10.4(a), references to
"the Trust" shall include, in addition to the resulting or surviving
entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person
who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of
another entity, shall stand in the same position under the provisions of
this Section 10.4(a) with respect to the resulting or surviving entity
as such person would have with respect to such constituent entity if its
separate existence had continued.
(viii) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a) shall, unless
otherwise provided when authorized or ratified, continue as to a person
who has ceased to be a Company Indemnified Person and shall inure to the
benefit of the successors, heirs, executors and administrators of such a
person.
(b) To the fullest extent permitted by law, the Sponsor agrees to
indemnify each Fiduciary Indemnified Person for, and to hold each Fiduciary
Indemnified Person harmless against, any loss, liability or expense to the
extent incurred without gross negligence (or in the case of the Property
Trustee, pursuant to Section 3.9, negligence), bad faith or willful misconduct
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses (including reasonable legal fees and expenses) of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The provisions of this
Section 10.4(b) shall survive the satisfaction and discharge of this Agreement
and any resignation or removal of the Property Trustee or the Delaware Trustee,
as the case may be.
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Section 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee (subject to Section 5.3(c)) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Agreement in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. No Covered
Person, the Sponsor, the Delaware Trustee or the Property Trustee shall be
obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust,
could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee shall have the right to take for its own
account (individually or as a partner or fiduciary) or to recommend to others
any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
Section 10.6 Trustees' Fees and Expenses.
Each Trustee shall receive as compensation for its services
hereunder such fees and expenses as have been separately agreed upon before the
date hereof between the Sponsor and such Trustee, and each Trustee shall be
entitled to be reimbursed by the Sponsor for other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as such Trustee may employ in
connection with the exercise and performance of its rights and duties hereunder.
ARTICLE XI.
ACCOUNTING
Section 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
Section 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Administrative Trustees on behalf of the Trust shall keep, or cause to be kept,
full books of account, records and supporting documents, all of which shall
reflect in reasonable detail each transaction of the Trust. The books of account
shall be maintained on the accrual method of accounting, in accordance with
generally accepted accounting principles, consistently applied. The Trust shall
use the accrual method of accounting for United States federal income tax
purposes. The books of account and the records of the Trust shall be examined by
and reported upon as of the end of each Fiscal Year of the Trust by a firm of
independent certified public accountants selected by the Administrative
Trustees, which may also serve as the independent certified public accountant
for the Sponsor or any Affiliate of the Sponsor.
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(b) The Administrative Trustees, on behalf of the Trust, shall
cause to be duly prepared and delivered to each of the Holders of Securities,
any annual United States federal income tax information statement required by
the Code and the Treasury Regulations, containing such information with regard
to the Securities held by each Holder as is required by the Code and the
Treasury Regulations. Notwithstanding any right under the Code to deliver any
such statement at a later date, the Administrative Trustees on behalf of the
Trust shall endeavor to deliver all such statements within 30 days after the end
of each Fiscal Year of the Trust.
(c) The Administrative Trustees on behalf of the Trust shall
cause to be duly prepared and filed with the appropriate taxing authority an
annual United States federal income tax return, on a Form 1041 or such other
form required by United States federal income tax law, and any other annual
income tax returns required to be filed by the Trust with any state or local
taxing authority.
Section 11.3 Banking.
The Administrative Trustees, on behalf of the Trust, shall
maintain one or more bank accounts in the name and for the sole benefit of the
Trust; provided however, that all payments for the benefit of holders of
Securities of funds in respect of Trust Property shall be made directly to the
Property Trustee Account and no other funds of the Trust shall be deposited in
the Property Trustee Account. The sole signatories for such accounts shall be
designated by the Administrative Trustees; provided, however, that the Property
Trustee shall designate the signatories for the Property Trustee Account.
Section 11.4 Withholding.
The Administrative Trustees on behalf of the Trust shall comply
with all withholding requirements under United States federal, state and local
law. The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations. The Administrative
Trustees on behalf of the Trust shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established
by a Holder, shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual distributions made, the Trust may reduce subsequent distributions by
the amount of such withholding.
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ARTICLE XII.
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
Except as otherwise provided in this Agreement or by any
applicable terms of the Securities:
(a) this Agreement may only be amended by a written instrument
approved and executed by the Sponsor and the Administrative Trustees (or, if
there are more than two Administrative Trustees, a majority of the
Administrative Trustees) and:
(i) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, also by the Property
Trustee; and
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, also by the Delaware
Trustee;
(b) no amendment shall be made:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate from
each of the Trust and the Sponsor that such amendment is permitted by,
and conforms to, the terms of this Agreement (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Agreement (including the terms
of the Securities); and
(B) an opinion of qualified independent counsel that
such amendment is permitted by, and conforms to, the terms of
this Agreement (including the terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers
of the Property Trustee in contravention of the Trust
Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
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(c) after the Trust has issued any Securities that remain
outstanding, without the consent of the Holders of a Majority in liquidation
amount of each class of Securities affected, this Agreement may not be amended
for any reason in a manner that would adversely affect the rights, privileges or
preferences of such class of Securities, provided that, except as may be
provided in the Terms and Conditions, without the consent of each Holder of
Securities affected thereby, this Agreement may not be amended to:
(i) change the Distribution rate, or manner of calculation of
the Distribution rate, amount, timing or currency or otherwise adversely
affect the method of any required payment;
(ii) change the purpose of the Trust;
(iii) authorize the issuance of any additional beneficial
interests in the Trust;
(iv) change the conversion, exchange, redemption or repayment
provisions, if any;
(v) change the conditions precedent for the Sponsor to elect
to dissolve the Trust and distribute the debt securities held by the
Trust to the Holders of the Trust Securities, if applicable;
(vi) change the liquidation, distribution or other provisions
relating to the distribution of amounts payable upon the dissolution and
liquidation of the Trust;
(vii) affect the limited liability of any Holder of the Trust
Securities; or
(viii) restrict the right of a Holder of the Trust Securities
to institute suit for the enforcement of any required payment on or, if
applicable, after the due date therefor or for the conversion or
exchange of the Securities in accordance with their terms.
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Sponsor;
(f) the rights of the holders of the Common Securities under
Article V to increase or decrease the number of, and appoint and remove,
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Agreement may be
amended by the Trustees and the Sponsor without the consent of the Holders of
the any Securities that are outstanding to:
(i) cure any ambiguity;
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(ii) correct or supplement any provision in this Agreement
that may be defective or inconsistent with any other provision of this
Agreement;
(iii) add to the covenants, restrictions or obligations of
the Sponsor;
(iv) conform to any change in the Investment Company Act or
the Trust Indenture Act or the rules and regulations promulgated
thereunder or any written change in interpretation or application of
such act or such rules or regulations by any legislative body, court,
government agency or regulatory authority; or
(v) cause the Trust to continue to be classified for United
States federal income tax purposes as a grantor trust,
provided however, that, in the case of clauses (i) or (ii), such action shall
not adversely affect in any material respect the interests of the Holders.
Any amendments to this Agreement adopted pursuant to Section 12.1(g)
shall become effective when notice thereof is given to the Holders.
Section 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be
called at any time by the Administrative Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of
Securities are entitled to act under the terms of this Agreement, the terms of
the Securities or the rules of any stock exchange on which the Trust Preferred
Securities are listed or admitted for trading. The Administrative Trustees shall
call a meeting of the Holders if directed to do so by the Holders of at least
10% in liquidation amount of Securities. Such direction shall be given by
delivering to the Administrative Trustees one or more calls in a writing stating
that the signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders
of Securities calling a meeting shall specify in writing the Certificates held
by the Holders of Securities exercising the right to call a meeting and only
those Securities specified shall be counted for purposes of determining whether
the required percentage set forth in the second sentence of this paragraph has
been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days and
not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or
required under this Agreement, the terms of the Securities or the rules
of any stock exchange on which the Trust Preferred Securities are listed
or admitted for trading, such vote, consent or approval may be given at
a meeting of the Holders of Securities. Any action that may be taken at
a meeting of the Holders of Securities may be taken without a meeting
and without prior notice if a consent in writing setting forth the
action so taken is signed by the Holders of Securities owning not less
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than the minimum amount of Securities in liquidation amount that would
be necessary to authorize or take such action at a meeting at which all
Holders of Securities having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be
given to the Holders of Securities entitled to vote who have not
consented in writing. The Administrative Trustees may specify that any
written ballot submitted to the Holder of Securities for the purpose of
taking any action without a meeting shall be returned to the Trust
within the time specified by the Administrative Trustees;
(ii) each Holder of a Security may authorize any Person to
act for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders of the Securities were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Administrative Trustees or by such other Person that
the Administrative Trustees may designate; and
(iv) unless the Business Trust Act, this Agreement, the terms
of the Securities, the Trust Indenture Act or the listing rules of any
stock exchange on which the Trust Preferred Securities are then listed
or trading otherwise provides, the Administrative Trustees, in their
sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XIII.
REPRESENTATIONS OF PROPERTY TRUSTEE AND
DELAWARE TRUSTEE
Section 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Agreement, and each
Successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee, that:
(a) the Property Trustee is a banking corporation, a national
banking association or a bank with trust powers, duly organized, validly
existing and in good standing under the laws
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of the United States of America or any State of the United States, with trust
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Agreement;
(b) the Property Trustee satisfies the requirements set forth in
Section 5.3(a);
(c) the execution, delivery and performance by the Property
Trustee of this Agreement has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Agreement has been duly executed
and delivered by the Property Trustee, and it constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law);
(d) the execution, delivery and performance of this Agreement by
the Property Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Property Trustee; and
(e) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Property Trustee, of this Agreement.
Section 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Agreement, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee, that:
(a) the Delaware Trustee is a banking corporation or national
banking association, duly organized, validly existing and in good standing under
the laws of the State of Delaware or the United States, as the case may be, with
power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Agreement;
(b) the execution, delivery and performance by the Delaware
Trustee of this Agreement has been duly authorized by all necessary corporate
action on the part of the Delaware Trustee. This Agreement has been duly
executed and delivered by the Delaware Trustee, and it constitutes a legal,
valid and binding obligation of the Delaware Trustee, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency, and other similar laws affecting creditors' rights
generally and to general principles of equity and the discretion of the court
(regardless of whether the enforcement of such remedies is considered in a
proceeding in equity or at law);
(c) no consent, approval or authorization of, or registration
with or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Agreement;
and
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(d) the execution, delivery and performance of the Agreement by
the Delaware Trustee does not conflict with or constitute a breach of the
Articles of Organization or By-laws of the Delaware Trustee; and
(e) the Delaware Trustee is a natural person who is a resident of
the State of Delaware or, if not a natural person, an entity which has its
principal place of business in the State of Delaware.
ARTICLE XIV.
MISCELLANEOUS
Section 14.1 Notices.
All notices provided for in this Agreement shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Administrative Trustees or the Trust, in care
of the Administrative Trustees at the Trust's mailing address set forth below
(or such other address as the Trust may give notice of to the Holders of the
Securities and the other Trustees):
Apache Trust [I/II]
c/o Apache Corporation
One Post Oak Central
2000 Post Oak Blvd., Suite 100
Houston, Texas 77056-4400
(b) if given to the Delaware Trustee, at the mailing address set
forth below (or such other address as Delaware Trustee may give notice of to the
Holders of the Securities):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attn: Corporate Trust Department
(c) if given to the Property Trustee, at its Corporate Trust
Office to the attention of Capital Markets Fiduciary Services (or such other
address as the Property Trustee may give notice of to the Holders of the
Securities):
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Capital Markets Fiduciary Services
(d) if given to the Holder of the Common Securities, at the
mailing address of the Sponsor set forth below (or such other address as the
Holder of the Common Securities may give notice to the Trust and the other
Trustees):
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<PAGE> 62
Apache Trust [I/II]
c/o Apache Corporation
One Post Oak Central
2000 Post Oak Blvd., Suite 100
Houston, Texas 77056-4400
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
All such notices shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
Section 14.2 Governing Law.
This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
Section 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Agreement shall be interpreted to further this intention of
the parties.
Section 14.4 Headings.
Headings contained in this Agreement are inserted for convenience
of reference only and do not affect the interpretation of this Agreement or any
provision hereof.
Section 14.5 Successors and Assigns.
Whenever in this Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Agreement by the Sponsor and
the Trustees shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed.
Section 14.6 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
Section 14.7 Entire Agreement.
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This Agreement constitutes the entire agreement among the
parties. It supersedes any prior agreement or understandings among them, and it
may not be modified or amended in any manner other than as set forth herein.
Section 14.8 Remedies.
The failure of any party to seek redress for violation of, or to
insist upon the strict performance of, any provision of this Agreement shall not
prevent a subsequent act, which would have originally constituted a violation,
from having the effect of an original violation. The rights and remedies
provided by this Agreement are cumulative and the use of any one right or remedy
by any party shall not preclude or waive its right to use any or all other
remedies. Said rights and remedies are given in addition to any other rights the
parties may have by law, statute, ordinance or otherwise.
Section 14.9 Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by affixing the signature of
each of the Trustees to one of such counterpart signature pages. All of such
counterpart signature pages shall be read as though one, and they shall have the
same force and effect as though all of the signers had signed a single signature
page.
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IN WITNESS WHEREOF, the undersigned have caused these presents to
be executed as of the day and year first above written.
---------------------------------------------
Matthew W. Dundrea, as Administrative Trustee
of the Trust
---------------------------------------------
Thomas L. Mitchell, as Administrative Trustee
of the Trust
CHASE MANHATTAN BANK DELAWARE
as Delaware Trustee
By:
------------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
as Property Trustee
By:
------------------------------------------
Name:
Title:
APACHE CORPORATION
as Sponsor
By:
------------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 5.1
March 28, 2000
Apache Corporation
2000 Post Oak Blvd., Suite 100
Houston, Texas 77056-4400
Ladies and Gentlemen:
I am an Attorney for Apache Corporation, a Delaware Corporation (the
"Company"), and am rendering this opinion in my capacity as such in connection
with the registration under the Securities Act of 1933, as amended (the "Act"),
of an aggregate of $1,000,000,000 aggregate initial offering price of (i) the
Company's preferred stock, no par value ("Preferred Stock"), (ii) the Company's
common stock, par value $1.25 per share ("Common Stock"), (iii) the Company's
senior unsecured debt securities (the "Senior Debt Securities"), (iv) the
Company's subordinated debt securities (the "Subordinated Debt Securities"), (v)
the Company's Depositary Shares ("Depositary Shares"), (vi) contracts to
purchase shares of Common Stock (the "Common Stock Purchase Contracts") and
(vii) purchase units of the Company each representing ownership of a Common
Stock Purchase Contract and any Senior Debt Securities, Subordinated Debt
Securities, Preferred Stock, debt obligations of any other person, or any
combination thereof ("Common Stock Purchase Units") (viii) preferred securities
(the "Trust Preferred Securities") of Apache Trust I and Apache Trust II, each a
statutory business trust created under the laws of the State of Delaware (the
"Trusts"), and (ix) the Company's guarantees with respect to the Trust Preferred
Securities (the "Guarantees," and together with the Preferred Stock, the Common
Stock, the Senior Debt Securities, the Subordinated Debt Securities, the
Depositary Shares, the Common Stock Purchase Contracts, Common Stock Purchase
Units and the Trust Preferred Securities, the "Securities") described in the
registration statement on Form S-3 (the "Registration Statement") of the Company
and the Trusts.
The Securities are to be offered upon the terms and subject to the
conditions set forth in one or more underwriting agreements by and between the
Company and/or the Trusts and the persons named as underwriters therein (each an
"Underwriting Agreement"). The Senior Debt Securities are to be issued in one or
more series pursuant to an Indenture between the Company and The Chase Manhattan
Bank, Trustee. The Subordinated Debt Securities are to be issued in one or more
series pursuant to a Subordinated Indenture between the Company and The Chase
Manhattan Bank, Trustee. The Guarantees will be issued pursuant one or more
guarantee agreements between the Company and The Chase Manhattan Bank, Trustee
(each, a "Guarantee Agreement" and, collectively, the "Guarantee Agreements").
If so specified in the applicable
<PAGE> 2
March 28, 2000
Page 2
prospectus supplement, the Preferred Stock may be represented by depositary
shares entitling the holders proportionally to all rights and preferences of the
Preferred Stock.
Capitalized terms used but not otherwise defined herein shall have the
meanings assigned to them in the Registration Statement.
In connection herewith, I have examined the Registration Statement
covering the Securities which is to be filed with the Securities and Exchange
Commission, originals or copies certified or otherwise identified to my
satisfaction of the restated certificate of incorporation and the by-laws of the
Company, each as amended to date, the corporate proceedings with respect to the
offering of the Securities and such other documents and instruments as I have
deemed it necessary or appropriate for the expression of the opinions contained
herein.
I have assumed the authenticity and completeness of all records,
certificates and other instruments presented to be originals, the conformity to
original documents of all records, certificates, and other instruments submitted
to me as copies, the authenticity and completeness of the originals of those
records, certificates and other instruments submitted to me as copies and the
correctness of all statements of fact contained in all records, certificates and
other instruments that I have examined.
Based on the foregoing, and having regard for such legal considerations
as I have deemed relevant, I am of the opinion that:
1. The Senior Debt Securities, when duly authorized and duly executed by the
proper officers of the Company, authenticated and delivered by the Trustee in
accordance with the Senior Indenture, and issued and sold pursuant to the terms
of the Underwriting Agreement against payment of the consideration therefor,
will constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms.
2. The Subordinated Debt Securities, when duly authorized and duly executed by
the proper officers of the Company, authenticated and delivered by the Trustee
in accordance with the Subordinated Indenture, and issued and sold pursuant to
the terms of the Underwriting Agreement against payment of the consideration
therefor, will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms.
3. The Preferred Stock and the Common Stock proposed to be issued, when duly
authorized, issued and delivered against payment therefor in accordance with the
terms of the Underwriting Agreement, will be validly issued, fully paid and
non-assessable.
4. Assuming that a deposit agreement relating to the Depositary Shares (the
"Deposit Agreement") has been duly authorized, and when (i) the Registration
Statement has become effective under the Act, (ii) the Deposit Agreement has
been duly executed and delivered, (iii) the terms of the Depositary Shares and
of their issuance and sale have been duly established in conformity with the
Deposit Agreement relating to such Depositary Shares so as not to violate any
applicable law or result in a default under or breach of any agreement or
instrument binding
<PAGE> 3
March 28, 2000
Page 3
upon the Company and so as to comply with any requirement or restriction imposed
by any court or governmental or regulatory body having jurisdiction over the
Company, (iv) the Preferred Stock has been duly and properly authorized for
issuance, (v) such shares of Preferred Stock have been duly issued and paid for
in the manner contemplated in the Registration Statement and any prospectus
supplement relating thereto, and (vi) receipts evidencing the Depositary Shares
are duly issued against the deposit of the Preferred Stock in accordance with
the Deposit Agreement, such Depositary Shares will be legally issued, fully paid
and non-assessable.
5. Assuming that a purchase contract agreement relating to the Common Stock
Purchase Contracts (the "Purchase Contract Agreement") and such Common Stock
Purchase Contracts have been duly authorized, and when (i) the Registration
Statement has become effective under the Act, (ii) the Purchase Contract
Agreement has been duly executed and delivered, (iii) the terms of the Common
Stock Purchase Contracts and of their issuance and sale have been duly
established in conformity with the Purchase Contract Agreement so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental or regulatory
body having jurisdiction over the Company, and (iv) the Common Stock Purchase
Contracts have been duly executed and issued in accordance with the Purchase
Contract Agreement relating to such Common Stock Purchase Contracts and issued
and sold in the form and in the manner contemplated in the Registration
Statement and any prospectus supplement relating thereto, such Common Stock
Purchase Contracts will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms.
6. Assuming that a Purchase Contract Agreement relating to the Common Stock
Purchase Contracts comprising a part of the Common Stock Purchase Units and such
Common Stock Purchase Contracts have been duly authorized, and when (i) the
Registration Statement has become effective under the Act, (ii) the Purchase
Contract Agreement has been duly executed and delivered, (iii) the terms of the
Common Stock Purchase Contracts and of their issuance and sale have been duly
established in conformity with the Purchase Contract Agreement so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with any
requirement or restriction imposed by any court or governmental or regulatory
body having jurisdiction over the Company, (iv) the terms of the collateral
arrangements relating to such Common Stock Purchase Units have been duly
established and the agreement(s) relating thereto has been duly executed and
delivered, in each case so as not to violate any applicable law or result in a
default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any court or
governmental or regulatory body having jurisdiction over the Company, and the
collateral has been deposited with the collateral agent in accordance with such
arrangements, and (v) the Common Stock Purchase Contracts have been duly
executed and issued in accordance with the Purchase Contract Agreement relating
to such Common Stock Purchase Contracts, and issued and sold in the form and in
the manner contemplated in the Registration Statement and any prospectus
supplement relating thereto, such Common Stock Purchase Units will constitute
valid and binding obligations of the Company, enforceable in accordance with
their terms.
<PAGE> 4
March 28, 2000
Page 4
7. With respect to the Guarantees to be issued pursuant to the applicable
Guarantee Agreement, when (i) such Guarantee Agreement has been duly authorized,
validly executed and delivered by each of the parties thereto and (ii) such
Guarantee Agreement has been duly qualified under the Trust Indenture Act of
1939, as amended, the Guarantees will constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms.
The opinions expressed in paragraphs (1), (2), (5), (6) and (7) above
regarding the enforceability of the Senior Debt Securities, the Subordinated
Debt Securities, the Common Stock Purchase Contracts, the Common Stock Purchase
Units and the Guarantees, respectively, are each subject to the exception of the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of creditors
right's generally or by general equity principals, and except further as
enforcement thereof may be limited by (i) requirements that claims with respect
to any Senior Debt Securities, Subordinated Debt Securities, Common Stock
Purchase Contracts, Common Stock Purchase Units or the Guarantees denominated
other than in U. S. Dollars (or a foreign currency or composite currency in
respect of such claim) be converted into U.S. Dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or (ii) governmental
authority to limit, delay or prohibit the making of payments outside the United
States.
The opinions set forth above are limited in all respects to matters of
Texas law and to the Delaware General Corporation Law (including the applicable
provisions of the Delaware Constitution and the reported judicial decisions
interpreting these laws).
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus included as part of the Registration Statement. In
giving such consent, I do not admit That I am in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ JEFFREY B. KING
-----------------------------------
Jeffrey B. King
Attorney
<PAGE> 1
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger, P.A.]
March 28, 2000
Apache Trust I
c/o Apache Corporation
3000 Post Oak Boulevard
Suite 100
Houston, TX 77056
Re: Apache Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Apache
Corporation, a Delaware corporation (the "Company"), and Apache Trust I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
March 13, 2000 (the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on March 13, 2000;
(b) The Trust Agreement of the Trust, dated as of March
13, 2000, among the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the undivided beneficial interests in the assets of the Trust (each,
a "Trust Preferred Security" and collectively, the "Trust
<PAGE> 2
Apache Trust I
March 28, 2000
Page 2
Preferred Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about March 28, 2000;
(d) A form of Amended and Restated Trust Agreement of the
Trust (excluding exhibits) (the "Trust Agreement"), to be entered into among the
Company, the trustees of the Trust named therein, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust, filed as an
exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
March 28, 2000, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, that each of the parties to the
documents examined by us has been duly created, organized or formed, as the case
may be, and is validly existing in good standing under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are signatories to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
<PAGE> 3
Apache Trust I
March 28, 2000
Page 3
authority to execute and deliver, and to perform its obligations under, such
documents, (v) that each party to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the receipt by each
Person to whom a Trust Preferred Security is to be issued by the Trust
(collectively, the "Trust Preferred Security Holders") of Trust Preferred
Security Certificate for such Trust Preferred Security in the name of such
Person and the payment for the Trust Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Trust Preferred Securities are issued and sold to the Trust Preferred
Security Holders in accordance with the Trust Agreement and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Business Trust Act.
2. The Trust Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Trust Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Trust Preferred Security Holders may be obligated to make payments as set forth
in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is
<PAGE> 4
Apache Trust I
March 28, 2000
Page 4
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
BJK/MKS
<PAGE> 1
EXHIBIT 5.3
[Letterhead of Richards, Layton & Finger, P.A.]
March 28, 2000
Apache Trust II
c/o Apache Corporation
3000 Post Oak Boulevard
Suite 100
Houston, TX 77056
Re: Apache Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Apache
Corporation, a Delaware corporation (the "Company"), and Apache Trust II, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
March 13, 2000 (the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on March 13, 2000;
(b) The Trust Agreement of the Trust, dated as of March
13, 2000, among the Company and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the undivided beneficial interests in the assets of the Trust (each,
a "Trust Preferred Security" and collectively, the "Trust
<PAGE> 2
Apache Trust II
March 28, 2000
Page 2
Preferred Securities"), as proposed to be filed by the Company, the Trust and
others with the Securities and Exchange Commission on or about March 28, 2000;
(d) A form of Amended and Restated Trust Agreement of the
Trust (excluding exhibits) (the "Trust Agreement"), to be entered into among the
Company, the trustees of the Trust named therein, and the holders, from time to
time, of undivided beneficial interests in the assets of the Trust, filed as an
exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
March 28, 2000, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Trust Agreement constitutes the entire agreement among the parties thereto with
respect to the subject matter thereof, including with respect to the creation,
operation and termination of the Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, that each of the parties to the
documents examined by us has been duly created, organized or formed, as the case
may be, and is validly existing in good standing under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are signatories to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
<PAGE> 3
Apache Trust II
March 28, 2000
Page 3
authority to execute and deliver, and to perform its obligations under, such
documents, (v) that each party to the documents examined by us has duly
authorized, executed and delivered such documents, (vi) the receipt by each
Person to whom a Trust Preferred Security is to be issued by the Trust
(collectively, the "Trust Preferred Security Holders") of Trust Preferred
Security Certificate for such Trust Preferred Security in the name of such
Person and the payment for the Trust Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Trust Preferred Securities are issued and sold to the Trust Preferred
Security Holders in accordance with the Trust Agreement and the Registration
Statement. We have not participated in the preparation of the Registration
Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Business Trust Act.
2. The Trust Preferred Securities will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Trust Preferred Security Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Trust Preferred Security Holders may be obligated to make payments as set forth
in the Trust Agreement.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is
<PAGE> 4
Apache Trust II
March 28, 2000
Page 4
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
BJK/MKS
<PAGE> 1
EXHIBIT 23.5
[APACHE CORPORATION LETTERHEAD]
March 28, 2000
I consent to the use of my name under the caption "Legal Matters" in the
prospectus included as part of the registration statement on Form S-3
filed by Apache Corporation on the date hereof. In giving such consent,
I do not admit that I am in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended.
Sincerely,
/s/ Z. S. KOBIASHVILI
---------------------------------------
Z. S. Kobiashvili, Vice President
and General Counsel
<PAGE> 1
EXHIBIT 23.6
[LETTERHEAD OF MAYOR, DAY, CALDWELL & KEETON, L.L.P]
March 28, 2000
We consent to the use of our name under the caption "Legal Matters" in the
prospectus included as part of the registration statement on Form S-3 filed by
Apache Corporation on the date hereof. In giving such consent, we do not admit
that we are in the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended.
Sincerely,
/s/ MAYOR, DAY, CALDWELL & KEETON, L.L.P.
-----------------------------------------
Mayor, Day, Caldwell & Keeton, L.L.P.
<PAGE> 1
EXHIBIT 25.1
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
APACHE CORPORATION.
(Exact name of obligor as specified in its charter)
DELAWARE
41-0747868
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE POST OAK CENTRAL
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of principal executive offices) (Zip Code)
--------------------------------------
SENIOR DEBT SECURITIES
(Title of the indenture securities)
-----------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 23RD day of MARCH 2000.
THE CHASE MANHATTAN BANK
By /s/ WALTER I. JOHNSON III
--------------------------
Walter I. Johnson III
Assistant Treasurer
- 3 -
<PAGE> 1
EXHIBIT 25.2
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
APACHE CORPORATION.
(Exact name of obligor as specified in its charter)
DELAWARE
41-0747868
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE POST OAK CENTRAL
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of principal executive offices) (Zip Code)
---------------------------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 23RD day of MARCH 2000.
THE CHASE MANHATTAN BANK
By /s/ WALTER I. JOHNSON III
--------------------------
Walter I. Johnson III
Assistant Treasurer
- 3 -
<PAGE> 1
EXHIBIT 25.3
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
APACHE CORPORATION TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE
41-0747868
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE POST OAK CENTRAL
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of principal executive offices) (Zip Code)
--------------------------------------------
TRUST PREFERRED SECURITIES
(Title of the indenture securities)
--------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 23RD day of MARCH 2000.
THE CHASE MANHATTAN BANK
By /s/ WALTER I. JOHNSON III
--------------------------
Walter I. Johnson III
Assistant Treasurer
- 3 -
<PAGE> 1
EXHIBIT 25.4
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
APACHE CORPORATION TRUST II
(Exact name of obligor as specified in its charter)
DELAWARE
41-0747868
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE POST OAK CENTRAL
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of principal executive offices) (Zip Code)
-----------------------------------------------
TRUST PREFERRED SECURITIES
(Title of the indenture securities)
-----------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 23RD day of MARCH 2000.
THE CHASE MANHATTAN BANK
By /s/ WALTER I. JOHNSON III
--------------------------
Walter I. Johnson III
Assistant Treasurer
- 3 -
<PAGE> 1
EXHIBIT 25.5
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-------------------------------------------------------
APACHE CORPORATION TRUST I
(Exact name of obligor as specified in its charter)
DELAWARE
41-0747868
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE POST OAK CENTRAL
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of principal executive offices) (Zip Code)
--------------------------------------------------------
GUARANTEE OF TRUST PREFERRED SECURITIES ISSUED BY
APACHE CORPORATION TRUST I
(Title of the indenture securities)
----------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 23RD day of MARCH 2000.
THE CHASE MANHATTAN BANK
By /s/ WALTER I. JOHNSON III
--------------------------
Walter I. Johnson III
Assistant Treasurer
- 3 -
<PAGE> 1
EXHIBIT 25.6
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------------
APACHE CORPORATION TRUST II
(Exact name of obligor as specified in its charter)
DELAWARE 41-0747868
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
ONE POST OAK CENTRAL
2000 POST OAK BOULEVARD, SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of principal executive offices) (Zip Code)
----------------------------------------------------------
GUARANTEE OF TRUST PREFERRED SECURITIES ISSUED BY
APACHE CORPORATION TRUST II
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 23RD. day of MARCH 2000.
THE CHASE MANHATTAN BANK
By /s/ WALTER I. JOHNSON III
--------------------------
Walter I. Johnson III
Assistant Treasurer
- 3 -
