<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 27, 1997
REGISTRATION NO. 333-18929
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
NOBLE AFFILIATES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 73-0785597
(State or other jurisdiction of incorporation
or organization) (I.R.S. Employer Identification No.)
</TABLE>
110 WEST BROADWAY
ARDMORE, OKLAHOMA 73401
(405) 223-4110
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------
ROBERT KELLEY
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
NOBLE AFFILIATES, INC.
110 WEST BROADWAY
ARDMORE, OKLAHOMA 73401
(405) 223-4110
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
Copies to:
ROBERT D. CAMPBELL
MICHAEL L. BENGTSON
THOMPSON & KNIGHT, P.C.
1700 PACIFIC AVENUE, SUITE 3300
DALLAS, TEXAS 75201
(214) 969-1700
---------------------
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, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------------
THIS POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT NO. 333-18929
SHALL HEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(C) OF THE
SECURITIES ACT OF 1933 ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(C), MAY DETERMINE.
================================================================================
<PAGE> 2
Information contained herein is subject to completion or amendment.
SUBJECT TO COMPLETION DATED MARCH 27, 1997
PRELIMINARY PROSPECTUS SUPPLEMENT
(To Prospectus dated December 27, 1996)
$350,000,000
NOBLE AFFILIATES, INC.
$250,000,000 % Senior Notes Due 2027
$100,000,000 % Senior Notes Due 2097
------------------------
Interest on the % Senior Notes Due 2027 (the "2027 Notes") and the
% Senior Notes Due 2097 (the "2097 Notes," and together with the 2027
Notes, the "Senior Notes") is payable semiannually on April and October
of each year, commencing October , 1997. The 2027 Notes are not
redeemable prior to maturity and will not be subject to any sinking fund. Upon
the occurrence of a Tax Event (as defined herein), the Company will have the
right (i) to shorten the maturity of the 2097 Notes to the extent required, in
the opinion of a nationally recognized independent tax counsel experienced in
such matters, such that, after shortening the maturity, interest paid on the
2097 Notes will be deductible for Federal income tax purposes, or (ii) under
certain circumstances to redeem the 2097 Notes then outstanding in whole (but
not in part) at a redemption price equal to the greater of (A) 100% of the
principal amount of the 2097 Notes and (B) the sum of present values of the
Remaining Scheduled Payments (as defined herein) on the redemption date
discounted to maturity on a semiannual basis at the Treasury Yield (as defined
herein) plus basis points, plus in either case accrued interest thereon to
the date of redemption. Prospective investors should be aware, however, that the
Company's exercise of its right to shorten the maturity of the 2097 Notes will
be a taxable event to holders if the 2097 Notes are treated as equity for
purposes of Federal income taxation before the maturity is shortened. See
"Certain Terms of the Senior Notes" and "Certain Federal Income Tax
Considerations" in this Prospectus Supplement.
The Senior Notes will be represented by one or more Global Securities
registered in the name of a nominee of The Depository Trust Company, as
depositary ("DTC"), or other depositary. Beneficial interests in the Global
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by DTC's participants. Except as provided herein,
owners of beneficial interests in the Global Securities will not be entitled to
receive Senior Notes in definitive form and will not be considered owners or
holders thereof. See "Certain Terms of the Senior Notes" in this Prospectus
Supplement and "Description of Debt Securities" in the accompanying Prospectus.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
<TABLE>
<CAPTION>
=======================================================================================================================
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC(1) DISCOUNTS(2) COMPANY(1)(3)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Per 2027 Note % % %
- -----------------------------------------------------------------------------------------------------------------------
Total................................................ $ $ $
- -----------------------------------------------------------------------------------------------------------------------
Per 2097 Note % % %
- -----------------------------------------------------------------------------------------------------------------------
Total................................................ $ $ $
=======================================================================================================================
</TABLE>
(1) Plus accrued interest, if any, from April , 1997.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(3) Before deducting expenses payable by the Company estimated at $380,000.
------------------------
The Senior Notes are offered by the Underwriters, subject to prior sale,
when, as and if issued to and accepted by the Underwriters and subject to
certain other conditions. The Underwriters reserve the right to withdraw, cancel
or modify such offer and to reject orders in whole or in part. See
"Underwriting." It is expected that the Senior Notes will be available for
delivery in book-entry form only through the facilities of DTC in New York, New
York on or about April , 1997 against payment therefor in immediately
available funds.
------------------------
The Joint Lead Managers of this offering are:
<TABLE>
<C> <C>
MORGAN STANLEY & CO. UBS SECURITIES
INCORPORATED
</TABLE>
------------------------
CHASE SECURITIES INC.
April , 1997
<PAGE> 3
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICES OF THE 2027 NOTES AND
THE 2097 NOTES. SPECIFICALLY, THE UNDERWRITERS MAY OVER-ALLOT IN CONNECTION WITH
THE OFFERING, AND MAY BID FOR, AND PURCHASE, THE 2027 NOTES AND THE 2097 NOTES
IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE "UNDERWRITING."
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus Supplement and the Prospectus include "forward-looking
statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended (the "Securities Act"), and Section 21E of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). All statements other than statements
of historical facts included in this Prospectus Supplement, the Prospectus and
the documents incorporated herein by reference, including without limitation,
statements under "The Company -- General" and "-- EDC Acquisition" in this
Prospectus Supplement and "The Company -- Business Strategy," "-- Exploration
and Development," "-- Properties -- Reserves" and "-- Hedging Arrangements" in
the Prospectus, regarding the Company's estimates of oil and gas reserves and
the future net cash flows attributable thereto, anticipated capital
expenditures, business strategy, plans and objectives of management of the
Company for future operations and industry conditions, are forward-looking
statements. Although the Company believes that the expectations reflected in
such forward-looking statements are reasonable, it can give no assurance that
such expectations will prove to have been correct. Important factors that could
cause actual results to differ materially from the Company's expectations
("Cautionary Statements") include without limitation future production levels,
future prices and demand for oil and gas, results of future exploration and
development activities, future operating and development costs, the effect of
existing and future laws and governmental regulations (including those
pertaining to the environment) and the political and economic climate of the
United States and the foreign countries in which the Company operates from time
to time, as discussed in this Prospectus Supplement, the Prospectus and the
other documents of the Company filed with the Securities and Exchange Commission
(the "Commission"). All subsequent written and oral forward-looking statements
attributable to the Company or persons acting on its behalf are expressly
qualified in their entirety by the Cautionary Statements.
OIL AND GAS TERMINOLOGY
Quantities of oil, condensate and natural gas liquids are expressed in this
Prospectus Supplement and the Prospectus in barrels ("bbls"), thousands of
barrels ("Mbbls") or millions of barrels ("MMbbls"), and quantities of natural
gas are expressed in thousands of cubic feet ("Mcf"), millions of cubic feet
("MMcf") or billions of cubic feet ("Bcf"). As used herein, "Mcfe" means
thousands of cubic feet of gas equivalent, "MMcfe" means millions of cubic feet
of gas equivalent and "Bcfe" means billions of cubic feet of gas equivalent; and
"MMBTU" means one million British Thermal Units. Oil, condensate and natural gas
liquids are converted to gas equivalents using the ratio of six Mcf of natural
gas to one barrel of oil, condensate or natural gas liquids. A "gross" acre or
well is an acre or well in which a working interest is owned, and a "net" acre
or well is deemed to exist when the sum of fractional ownership interests in
gross acres or wells equals one. "Undeveloped acreage" means lease acres on
which wells have not been drilled or completed to a point that would permit
production of commercial quantities of oil or gas regardless of whether such
acreage contains proved reserves, including lease acres (held by production
under terms of a lease) that are not within the spacing unit containing, or
acreage assigned to, the productive well so holding the lease.
---------------------
Capitalized terms not otherwise defined herein shall have the meanings
given to them in the Prospectus.
S-2
<PAGE> 4
SUMMARY
This summary is qualified in its entirety by, and should be read in
conjunction with, the more detailed information and financial statements
appearing elsewhere or incorporated by reference in the Prospectus and this
Prospectus Supplement. Unless otherwise indicated or the context otherwise
requires, the "Company" refers to Noble Affiliates, Inc. and its subsidiaries
(including EDC) and predecessors and "EDC" refers to Energy Development
Corporation and its subsidiaries.
For further information regarding the Senior Notes, see "Certain Terms of
the Senior Notes"
in this Prospectus Supplement and "Description of Debt Securities" in the
accompanying Prospectus.
THE COMPANY
GENERAL
Noble Affiliates, Inc. is an independent energy company engaged, through
its subsidiaries, in the exploration, production and marketing of crude oil and
natural gas. The Company's reserves are located principally offshore in the Gulf
of Mexico with other significant domestic reserves located onshore in the gulf
coast of Texas and Louisiana, Midcontinent and Rocky Mountain regions and
onshore California. Its international operations are located primarily in
Argentina, the North Sea, Equatorial Guinea and Canada. The Company's estimated
proved reserves as of December 31, 1996 consisted of 1,156.3 Bcf of gas and
115.7 MMbbls of oil.
The Company's principal business strategy is to increase reserves,
production and cash flow through a balanced program of exploratory and
development drilling, supplemented by strategic acquisitions. The Company
focuses its exploration and development drilling efforts in areas where it has a
concentration of existing producing properties in order to achieve operating and
technical efficiencies. The Company's acquisition strategy is to purchase large
working interests in operated oil and gas properties with exploration and
development opportunities that complement its existing operations and where the
Company can capture operating synergies and efficiencies. During the three-year
period ended December 31, 1996, the Company replaced approximately 252 percent
of its production at an average cost of $1.10 per Mcfe. From January 1, 1994 to
December 31, 1996, the Company increased its proved reserves from 691.5 Bcf of
gas and 73.0 MMbbls of oil to 1,156.3 Bcf of gas and 115.7 MMbbls of oil,
reflecting increases of 67.2 percent and 58.5 percent, respectively.
Additionally, the Company increased its average daily production from 247.6 MMcf
of gas and 22.8 Mbbls of oil in 1994 to 469.4 MMcf of gas and 34.5 Mbbls of oil
in 1996, reflecting increases of 89.6 percent and 51.3 percent, respectively.
The Company has numerous development and exploration opportunities, the
most important of which are on its extensive properties in the Gulf of Mexico
where the Company believes it is one of the largest independent operators. The
Company believes that the size and scope of its operations provide it with
certain economies of scale which allow it to more efficiently operate properties
in the Gulf of Mexico and, combined with the Company's long presence in the Gulf
of Mexico, give it an advantage over many other operators in making drilling and
acquisition decisions.
EDC ACQUISITION
Pursuant to its stated business strategy, on July 31, 1996, the Company
purchased all of the outstanding common stock of Energy Development Corporation
("EDC"), a wholly owned indirect subsidiary of Public Service Enterprise Group
(the "EDC Acquisition"), for approximately $768 million in cash. The Company
estimated the total proved reserves of EDC at July 31, 1996 at approximately
417.3 Bcf of gas and 35.7 MMbbls of oil. EDC's major properties are located
domestically in the Gulf of Mexico and onshore Louisiana and Texas, and
internationally in Argentina and the United Kingdom sector of the North Sea. The
Company believes that the EDC Acquisition has significantly enhanced its current
operations by further increasing its position in the Gulf of Mexico where the
Company's proved reserves increased by 32.1 percent to 898.9 Bcfe at December
31, 1996 as compared to December 31, 1995. In addition, the longer-lived
reserves
S-3
<PAGE> 5
of certain of EDC's domestic and international properties provide an attractive
balance to the Company's shorter-lived fields in the Gulf of Mexico as well as
additional geographic diversity to the Company's portfolio of oil and gas
properties.
The EDC Acquisition was accounted for using the purchase method of
accounting. Accordingly, the purchase price was allocated to EDC's assets and
liabilities based on fair value at the date of the acquisition, and the
financial results of EDC have been included in the financial results of the
Company for 1996 included or incorporated by reference herein from the date of
the acquisition.
THE OFFERING
Securities Offered......... $250,000,000 aggregate principal amount of %
Senior Notes Due 2027 (the "2027 Notes").
$100,000,000 aggregate principal amount of %
Senior Notes Due 2097 (the "2097 Notes").
Interest Payment Dates..... April and October of each year, commencing
October , 1997.
Ranking.................... The Senior Notes will rank senior in priority to
any subordinated indebtedness of the Company and
pari passu with any other senior unsecured
indebtedness of the Company. The Senior Notes will
be junior in right of payment to all of the
Company's secured obligations (insofar as the
assets securing such obligations are concerned) and
will be effectively junior in right of payment to
the indebtedness and other liabilities of the
Company's subsidiaries (insofar as the assets of
those subsidiaries are concerned). See "Certain
Terms of the Senior Notes" in this Prospectus
Supplement and "Description of Debt Securities" in
the accompanying Prospectus.
Conditional Right to Advance
Maturity Date of or to
Redeem the 2097 Notes.... Upon the occurrence of a Tax Event, the Company
will have the right (i) to shorten the maturity of
the 2097 Notes to the extent required, in the
opinion of a nationally recognized independent tax
counsel experienced in such matters, such that,
after shortening the maturity, interest paid on the
2097 Notes will be deductible for Federal income
tax purposes, or (ii) under certain circumstances
to redeem the 2097 Notes then outstanding in whole
(but not in part) at a redemption price equal to
the greater of (A) 100% of the principal amount of
the 2097 Notes and (B) the sum of present values of
the Remaining Scheduled Payments on the redemption
date discounted to maturity on a semiannual basis
at the Treasury Yield plus basis points, plus in
either case accrued interest thereon to the date of
redemption. Prospective investors should be aware,
however, that the Company's exercise of its right
to shorten the maturity of the 2097 Notes will be a
taxable event to holders if the 2097 Notes are
treated as equity for purposes of Federal income
taxation before the maturity is shortened. See
"Certain Terms of the Senior Notes -- Conditional
Right to Advance Maturity Date of or to Redeem the
2097 Notes" in this Prospectus Supplement.
Covenants.................. The Indenture will contain covenants that limit the
Company's ability to incur indebtedness secured by
certain liens and to engage in certain sale and
leaseback transactions. These limitations will be
subject to certain qualifications and exceptions.
See "Description of Debt Securities -- Provisions
Applicable to the Senior Indenture -- Certain
Covenants of the Company" in the accompanying
Prospectus.
S-4
<PAGE> 6
Use of Proceeds............ The estimated aggregate net proceeds of
approximately $ million from the sale of the
Senior Notes will be used together with available
cash to repay the outstanding principal of $349
million plus accrued interest under the term loan
under the Company's Credit Agreement.
Absence of Market for the
Senior Notes............... The Senior Notes will be new issues of securities
for which there currently is no market. Although
the Underwriters have informed the Company that
they each currently intend to make a market in the
Senior Notes, they are not obligated to do so, and
any such market making may be discontinued at any
time without notice. Accordingly, there can be no
assurance as to the development or liquidity of any
market for the Senior Notes.
S-5
<PAGE> 7
SUMMARY FINANCIAL AND OPERATING DATA
(Expressed in thousands, except per share amounts and as noted)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------------
1992 1993 1994 1995 1996
-------- ---------- -------- -------- ----------
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Gas and oil sales and royalties........................... $259,765 $ 278,004 $306,169 $328,134 $ 604,588
Gathering, marketing and processing....................... -- -- 43,921 112,702 273,690
Other income(1)........................................... 44,017 8,579 8,299 46,182 8,925
-------- ---------- -------- -------- ----------
303,782 286,583 358,389 487,018 887,203
Costs and expenses........................................ 242,460 265,924 353,164 479,020(2) 750,914
-------- ---------- -------- -------- ----------
Income before taxes....................................... 61,322 20,659 5,225 7,998 136,289
Income tax provision...................................... 20,082 8,034 2,059 3,912 52,409
-------- ---------- -------- -------- ----------
Net income................................................ $ 41,240 $ 12,625 $ 3,166 $ 4,086 $ 83,880
======== ========== ======== ======== ==========
Net income per share...................................... $ .93 $ .26 $ .06 $ .08 $ 1.63
======== ========== ======== ======== ==========
Weighted average number of shares outstanding............. 44,341 48,098 49,970 50,046 51,414
OTHER FINANCIAL DATA:
Net cash provided by operating activities................. $125,107 $ 139,381 $188,621 $238,920 $ 380,945
Capital expenditures...................................... 65,810 510,113 161,344 259,242 985,984
BALANCE SHEET DATA (AT PERIOD END):
Property, plant and equipment, net........................ $421,632 $ 794,605 $813,380 $843,945 $1,571,764
Total assets.............................................. 625,621 1,067,996 933,516 989,176 1,956,938
Long-term debt (including current installments)........... 224,793 453,760 376,956 376,992 848,028
Shareholders' equity...................................... 304,779 415,432 412,066 411,911 720,067
OPERATING DATA:
Average daily production:
Natural gas (MMcf)...................................... 204.6 211.1 247.6 272.2 469.4
Oil and condensate (Mbbls).............................. 17.8 19.5 22.8 25.6 34.5
Gas equivalent (MMcfe).................................. 311.6 328.1 384.1 425.9 676.5
Average sales prices:
Natural gas (per Mcf)(3)................................ $ 1.81 $ 2.10 $ 1.97 $ 1.72 $ 2.17
Oil and condensate (per bbl)(4)......................... $ 18.68 $ 15.91 $ 14.90 $ 16.78 $ 18.28
Average lifting cost (per Mcfe)........................... $ .84 $ .74 $ .62 $ .70 $ .62
Average finding cost (per Mcfe) (5)....................... $ .66 $ .86 $ .77 $ .94 $ 1.25
Reserve replacement percentage (6)........................ 101% 504% 175% 183% 333%
GAS AND OIL PROVED RESERVE DATA (AT PERIOD END) (UNAUDITED):
Estimated proved reserves:
Natural gas (Bcf)....................................... 372.2 691.5 779.0 850.3 1,156.3
Crude oil and condensate (MMbbls)....................... 47.4 73.0 75.5 84.0 115.7
Gas equivalent (Bcfe)................................... 656.6 1,129.5 1,232.1 1,354.4 1,850.4
</TABLE>
- ---------------
(1) Includes for the year ended December 31, 1992, $27.9 million recorded as
gain on the sale of an unconsolidated affiliate, $4.3 million recorded as
income from the investment in an unconsolidated affiliate prior to its sale,
and $7.5 million in income recorded from the settlement of a gas contract,
and for the year ended December 31, 1995, $39 million related to the
settlement of a Columbia Gas Transmission Corporation bankruptcy claim.
(2) Includes a $59.5 million charge related to the write-down of certain assets
in connection with the Company's adoption in 1995 of Financial Accounting
Standards No. 121.
(3) Includes the effect of natural gas hedging transactions. The amounts shown
reflect (per Mcf) a reduction of $.045, a reduction of $.048, a reduction of
$.004 and a reduction of $.33 for the year ended December 31, 1992, 1993,
1995 and 1996, respectively. See "The Company -- Hedging Arrangements" in
the Prospectus.
(4) Includes the effect of crude oil hedging transactions. The amounts shown
reflect (per bbl) an increase of $.33, an increase of $.02, an increase of
$.16 and a reduction of $2.35 for the year ended December 31, 1992, 1993,
1995 and 1996, respectively. See "The Company -- Hedging Arrangements" in
the Prospectus.
(5) Finding cost reflects the sum of property acquisition costs, exploration
costs and development costs incurred during a year divided by the quantity
of reserves added during that year through drilling, acquisitions and
revision of previous estimates.
(6) The reserve replacement percentage reflects the percentage of the Company's
annual oil and gas production that is replaced during the same year through
additions of reserves from exploratory and development drilling,
acquisitions of proved properties and revisions of previous estimates.
S-6
<PAGE> 8
USE OF PROCEEDS
The estimated aggregate net proceeds of approximately $ million from
the sale of the Senior Notes will be used together with available cash to repay
the outstanding principal of $349 million plus accrued interest under the term
loan under the Company's Credit Agreement. On March 31, 1997, the principal
amount outstanding under the Credit Agreement was $749 million. The average
interest rate on indebtedness outstanding under the Credit Agreement on March
31, 1997 was 5.97% per annum. The Credit Agreement matures on July 31, 2001.
Borrowings of $800 million under the Credit Agreement were used to fund the
purchase price for EDC and, together with funds on hand, to repay $48 million of
outstanding indebtedness under the Company's prior credit agreement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
the Company and its consolidated subsidiaries for the periods indicated.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------
1992 1993 1994 1995 1996
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.............. 3.92 1.76 0.92(1) 1.22 4.48
</TABLE>
- ---------------
(1) Earnings were insufficient to cover fixed charges by approximately $2.0
million.
For purposes of calculating the ratios, "earnings" consist of income from
continuing operations before income taxes, minority interest and fixed charges
and "fixed charges" consist of interest and that portion of rent which is deemed
representative of interest.
S-7
<PAGE> 9
CAPITALIZATION
The following table sets forth the capitalization of the Company (including
current installments of long-term debt) as of December 31, 1996 (i) on an actual
basis and (ii) as adjusted to give effect to the issuance and sale of the Senior
Notes by the Company and the application of the estimated net proceeds
therefrom. See "Use of Proceeds" in this Prospectus Supplement.
<TABLE>
<CAPTION>
DECEMBER 31, 1996
----------------------
AS
ACTUAL ADJUSTED
---------- --------
(IN THOUSANDS)
<S> <C> <C>
Long-term debt (including current installments):
7 1/4% Notes Due 2023..................................... $ 99,028 $ 99,028
% Notes Due 2027 offered hereby......................... --
% Notes Due 2097 offered hereby......................... --
Bank credit agreement..................................... 749,000 400,000
---------- --------
Total long-term debt (including current
installments)................................... 848,028
---------- --------
Shareholders' equity:
Common stock (1).......................................... 194,402 194,402
Capital in excess of par value............................ 355,651 355,651
Retained earnings......................................... 185,432 185,432
Less common stock in treasury, at cost.................... (15,418) (15,418)
---------- --------
Total shareholders' equity........................ 720,067 720,067
---------- --------
Total capitalization......................... $1,568,095 $
========== ========
</TABLE>
- ---------------
(1) Outstanding shares of Common Stock aggregated 56,796,397. Such amount
excludes 1,602,098 shares of Common Stock reserved for issuance upon
exercise of options outstanding under the Company's stock option plans.
CERTAIN TERMS OF THE SENIOR NOTES
The 2027 Notes and the 2097 Notes offered hereby are each a series of
"Senior Debt Securities," as defined and described in the accompanying
Prospectus, and the following description of the terms of the Senior Notes
supplements, and to the extent inconsistent therewith replaces, the description
of the general terms and provisions of the Senior Debt Securities set forth in
the accompanying Prospectus.
GENERAL
The Senior Notes will be senior unsecured obligations of the Company. The
Senior Notes will be issued pursuant to the provisions of an Indenture dated as
of April 1, 1997 (as supplemented, the "Indenture"), entered into between the
Company and U.S. Trust Company of Texas, N.A., as trustee (the "Trustee"), and
will be limited to $250 million aggregate principal amount for the 2027 Notes
and $100 million aggregate principal amount for the 2097 Notes. A copy of the
form of Indenture is incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus Supplement is a part. The following summaries
of certain provisions of the Senior Notes and the Indenture should be read in
conjunction with the statements under "Description of Debt Securities" in the
accompanying Prospectus. Such information does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, the Senior Notes
and the Indenture. Wherever particular provisions or defined terms of the
Indenture are referred to, such provisions or defined terms are incorporated
herein by reference.
The Company may, from time to time, without the consent of the holders of
the Senior Notes, provide for the issuance of additional Senior Notes or other
Debt Securities under the Indenture in addition to the Senior Notes offered
hereby. The Indenture will not limit the amount of other indebtedness that may
be issued by the Company or any of its subsidiaries.
S-8
<PAGE> 10
The 2027 Notes will not be redeemable prior to maturity and will not be
subject to any sinking fund. As described below under "Conditional Right to
Advance Maturity Date of or to Redeem the 2097 Notes," upon the occurrence of a
Tax Event, the Company will have the right to (i) advance the maturity date of
the 2097 Notes to the extent required so that interest paid on the 2097 Notes
will be deductible for United States Federal income tax purposes, or (ii) under
certain circumstances to redeem the 2097 Notes then outstanding in whole (but
not in part) at a redemption price equal to the greater of (A) 100% of the
principal amount of the 2097 Notes and (B) the sum of present values of the
Remaining Scheduled Payments on the redemption date discounted to maturity on a
semiannual basis at the Treasury Yield plus basis points, plus in either
case accrued interest thereon to the date of redemption.
The 2027 Notes will mature on April , 2027, and the 2097 Notes will
mature on April , 2097. Each of the Senior Notes will bear interest from April
, 1997 (at the respective rates of interest stated on the cover page of this
Prospectus Supplement) payable on April and October of each year,
commencing on October , 1997, to the persons in whose names the Senior Notes
are registered at the close of business on the and , as the
case may be, immediately preceding such interest payment date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
CONDITIONAL RIGHT TO ADVANCE MATURITY DATE OF OR TO REDEEM THE 2097 NOTES
Upon the occurrence of a Tax Event, the Company will have the right,
without the consent of the holders of the 2097 Notes, to advance the maturity
date of the 2097 Notes to the extent required, in the written opinion of a
nationally recognized independent tax counsel experienced in such matters, such
that, after advancing the maturity date, interest paid on the 2097 Notes will be
deductible for Federal income tax purposes. See "Certain Federal Income Tax
Considerations" in this Prospectus Supplement. There can be no assurance that
the Company would not exercise its right to advance the stated maturity date of
the 2097 Notes upon the occurrence of a Tax Event.
In the event that the Company elects to exercise its right to advance the
maturity date of the 2097 Notes on the occurrence of a Tax Event, the Company
will mail a notice of the advanced maturity date to each holder of record of the
2097 Notes by first-class mail not more than 60 days after the occurrence of
such Tax Event, stating the new maturity date of the 2097 Notes, and will cause
the 2097 Notes to be amended accordingly. Such notice shall be effective
immediately upon mailing.
"Tax Event" means that the Company shall have received the written opinion
of a nationally recognized independent tax counsel experienced in such matters
to the effect that, on or after the date of the 2097 Notes' issuance, as a
result of (A) any amendment to, clarification of, or change (including any
announced prospective change) in laws, or any proposed, temporary or final
regulations thereunder, of the United States, (B) any judicial decision,
official administrative pronouncement, authorization, ruling, regulatory
procedure, notice or announcement, including any notice or announcement of
proposal to adopt such procedures or regulations (an "Administrative Action"),
or (C) any amendment to, clarification of, or change in the official position or
the interpretation of such Administrative Action or judicial decision that
differs from the theretofore generally accepted position, in each case on or
after the date of the issuance of the 2097 Notes, such change in tax laws or
regulations creates a more than insubstantial risk that interest paid by the
Company on the 2097 Notes is not, or will not be, deductible, in whole or in
part, by the Company for Federal income tax purposes.
In addition, if a Tax Event occurs and in the opinion of a nationally
recognized independent tax counsel experienced in such matters there would,
notwithstanding any shortening of the maturity of the 2097 Notes, be more than
an insubstantial risk that interest paid by the Company on the 2097 Notes is
not, or will not be, deductible, in whole or in part, for purposes of U.S.
Federal income tax, the Company will have the right, within 90 days following
the occurrence of such Tax Event, to redeem the 2097 Notes in whole (but not in
part) at a redemption price equal to the greater of (i) 100% of the principal
amount of the 2097 Notes, and (ii) the sum of present values of the Remaining
Scheduled Payments on the redemption date discounted to maturity on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Yield plus basis points, plus in either case accrued interest thereon
to the date of redemption.
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<PAGE> 11
"Treasury Yield" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue (as defined herein), assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker (as defined herein) as having a
maturity comparable to the remaining term of the 2097 Notes or, if no such
security exists, a security that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
2097 Notes. "Independent Investment Banker" means Morgan Stanley & Co.
Incorporated or UBS Securities LLC or, if neither firm is willing or able to
select the Comparable Treasury Issue, an independent investment banking
institution of national standing appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any redemption date, the
average of the Reference Treasury Dealer Quotations (as defined herein) for such
redemption date. "Reference Treasury Quotations" means, with respect to each
Reference Treasury Dealer (as defined herein) and any redemption date, the
average of the bid and asked prices for the Comparable Treasury Issue (expressed
as a percentage of its principal amount) quoted in writing to the Trustee by
such Reference Treasury Dealer at 5:00 p.m. New York City time on the third
business day preceding such redemption date.
"Reference Treasury Dealer" means each of Morgan Stanley & Co.
Incorporated, UBS Securities LLC and Chase Securities Inc., and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to any 2097 Note, the
remaining scheduled payments of the principal thereof to be redeemed and
interest thereon that would be due after the related redemption date but for
such redemption; provided, however, that, if such redemption date is not an
interest payment date with respect to such 2097 Note, the amount of the next
succeeding scheduled interest payment thereon will be reduced by the amount of
interest accrued thereon to such redemption date.
Holders of 2097 Notes to be redeemed will receive notice thereof by
first-class mail at least 30 and not more than 60 days prior to the date fixed
for redemption.
Unless the Company defaults in payment of the redemption price, on and
after the redemption date interest will cease to accrue on the 2097 Notes.
RANKING
The Senior Notes will rank senior in priority to any subordinated
indebtedness of the Company and pari passu with any other senior unsecured
indebtedness of the Company. The Senior Notes will be junior in right of payment
to all of the Company's secured obligations (insofar as the assets securing such
obligations are concerned) and will be effectively junior in right of payment to
the indebtedness and other liabilities of the Company's subsidiaries (insofar as
the assets of those subsidiaries are concerned). The Company's two principal
subsidiaries, Samedan Oil Corporation and Energy Development Corporation, have
each guaranteed the indebtedness of the Company under the Credit Agreement.
CERTAIN COVENANTS APPLICABLE TO THE SENIOR NOTES
The Indenture, as applicable to the Senior Notes, will provide that the
Company will be subject to covenants pertaining to limitations on liens and sale
and leaseback transactions as described under "Description of Debt
Securities -- Provisions Applicable to the Senior Indenture -- Certain Covenants
of the Company -- Limitations on Liens" and "-- Limitations on Sale and
Leaseback Transactions" in the accompanying Prospectus.
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<PAGE> 12
DEFEASANCE
Subject to compliance with certain conditions, the Company may discharge
its indebtedness and its obligations or certain of its obligations under the
Indenture by depositing funds or obligations issued or guaranteed by the United
States of America ("U.S. Government Obligations") with the Trustee.
The Indenture will provide that the Company will be discharged from
substantially all of its obligations in respect of the Senior Notes upon the
deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of, and each installment of interest on, the Senior Notes on the
Stated Maturity of such payments. Such a trust may only be established if, among
other things, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the date of the
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 of Counsel shall
confirm that, the holders of the Senior Notes will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit, defeasance and
discharge, and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred. In the event of any such
defeasance and discharge of the Senior Notes, holders of the Senior Notes would
be entitled to look only to such trust fund for payment of principal of and
interest on the Senior Notes until Maturity.
The Indenture will provide that the Company may omit to comply with certain
restrictive covenants, including the covenants described under "Description of
Debt Securities -- Provisions Applicable to the Senior Indenture -- Certain
Covenants of the Company" in the accompanying Prospectus, and any such omission
shall not be an Event of Default with respect to the Senior Notes, upon the
deposit with the Trustee, in trust, of money and/or U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of, and each installment of interest on, the Senior Notes on the
Stated Maturity of such payments. The obligations of the Company under the
Indenture and the Senior Notes other than with respect to such covenants shall
remain in full force and effect. Such a trust may be established only if, among
other things, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that the holders of the Senior Notes will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit and
defeasance, and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred.
Although the amount of money and U.S. Government Obligations on deposit
with the Trustee would be intended to be sufficient to pay amounts due on the
Senior Notes at the time of their Stated Maturity, in the event the Company
exercises its option to omit compliance with the covenants defeased with respect
to the Senior Notes as described above and the Senior Notes are declared due and
payable because of the occurrence of any Event of Default, such amount may not
be sufficient to pay amounts due on the Senior Notes at the time of the
acceleration resulting from such Event of Default. The Company shall in any
event remain liable for such payments as provided in the Indenture.
THE TRUSTEE
U.S. Trust Company of Texas, N.A. will initially be the Trustee under the
Indenture. The Company has also appointed the Trustee as the initial Registrar
and as initial Paying Agent under the Indenture. The Indenture and provisions of
the Trust Indenture Act incorporated by reference therein contain limitations on
the right of the Trustee, should it become a creditor of the Company to obtain
payment of claims in certain cases or to realize on certain property received by
it in respect of any such claim as security or otherwise.
BOOK-ENTRY, DELIVERY AND FORM
Each of the 2027 Notes and the 2097 Notes will be issued in the form of one
or more registered Global Securities that will be deposited with, or on behalf
of, The Depository Trust Company, New York, New York
S-11
<PAGE> 13
("DTC"). Unless and until it is exchanged in whole or in part for Senior Notes
in definitive form, a Global Security may not be transferred except as a whole
to a nominee of DTC for such Global Security, or by a nominee of DTC to DTC or
another nominee of DTC, or by DTC or any such nominee to a successor Depositary
or a nominee of such successor Depositary. Initially, the Senior Notes will be
registered in the name of Cede & Co., the nominee of DTC.
Ownership of beneficial interests in a Global Security will be limited to
persons who have accounts with DTC or its nominee ("participants") or persons
who hold interests through participants. Ownership of beneficial interests in
the Global Security will be shown on, and the transfer of these ownership
interests will be effected only through, records maintained by DTC or its
nominee (with respect to interests of participants) and the records of
participants (with respect to interests of persons held by such participants on
their behalf).
So long as DTC, or its nominee, is the registered owner or holder of a
Global Security, DTC or such nominee, as the case may be, will be considered the
sole owner or holder of the Senior Notes represented by such Global Security for
all purposes under the Indenture and the Senior Notes. In addition, no
beneficial owner of an interest in a Global Security will be able to transfer
that interest except in accordance with the applicable procedures of DTC.
Payments on a Global Security will be made to DTC or its nominee, as the
registered owner thereof. None of the Company, the Trustee or any paying agent
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records related to
such beneficial ownership interests.
The Company has been advised by DTC that upon receipt of any payment in
respect of a Global Security representing any Senior Notes held by it or its
nominee, DTC will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security for such Senior Notes as shown on the records of
DTC or its nominee. The Company also expects that payments by participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers registered in the names of
nominees for such customers. Such payment will be the responsibility of such
participants. None of the Company, the Trustee or any agent of the Company or
the Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules. The laws of some states require that certain
persons take physical delivery of securities in definitive form. Consequently,
the ability to transfer beneficial interests in a Global Security to such
persons may be limited. Because DTC can only act on behalf of participants, who
in turn act on behalf of indirect participants (as defined below) and certain
banks, the ability of a person having a beneficial interest in a Global Security
to pledge such interest to persons that do not participate in the DTC system, or
otherwise take actions in respect of such interest, may be affected by the lack
of a physical certificate of such interest.
DTC has advised the Company as follows: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC holds securities that its participants
deposit with DTC and facilitates the settlement among participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. Access to the DTC system
is also available to others such as securities brokers and dealers, banks and
trust companies that clear through or maintain a custodial relationship with a
direct participant, either directly or indirectly ("indirect participants"). The
rules applicable to DTC and its participants are on file with the Commission.
S-12
<PAGE> 14
Although DTC is expected to follow the foregoing procedures in order to
facilitate transfers of interests in a Global Security among participants of
DTC, it is under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time. None of the
Company or the Trustee will have any responsibility for the performance by DTC
or the participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
Senior Notes represented by a Global Security will be exchangeable for
Senior Notes in definitive form of like tenor as such Global Security in
denominations of $1,000 and in any greater amount that is an integral multiple
if DTC notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time DTC ceases to be a
clearing agency registered under applicable law and a successor depositary is
not appointed by the Company within 90 days or the Company in its discretion at
any time determines not to require all of the Senior Notes to be represented by
a Global Security and notifies the Trustee thereof. Any Senior Notes that are
exchangeable pursuant to the preceding sentence are exchangeable for Senior
Notes issuable in authorized denominations and registered in such names as DTC
shall direct. Subject to the foregoing, a Global Security is not exchangeable,
except for a Global Security or Global Securities of the same aggregate
denominations to be registered in the name of DTC or its nominee.
Neither the Company nor the Trustee will be liable for any delay by the
related Global Security holder or DTC in identifying the beneficial owners of
the related Senior Notes, and the Company and the Trustee may conclusively rely
on, and will be protected in relying on, instructions from such Global Security
Holder or of DTC for all purposes (including with respect to the registration
and delivery, and the respective principal amounts, of the Senior Notes to be
issued).
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain material United States Federal income
tax considerations relating to the purchase, ownership and disposition of the
Senior Notes, but does not purport to be a complete analysis of all the
potential tax considerations relating thereto. This summary is based on the
Internal Revenue Code of 1986, as amended (the "Code"), existing, temporary and
proposed Treasury regulations, Internal Revenue Service ("IRS") rulings and
judicial decisions now in effect, all of which are subject to change (possibly
with retroactive effect) or different interpretations. This summary deals (i)
only with beneficial owners ("Holders") that will hold Senior Notes as "capital
assets" (within the meaning of Section 1221 of the Code) and (ii) only with
Holders that are citizens or residents of the United States, or any state
thereof, or a corporation or other entity created or organized under the laws of
the United States, or any political subdivision thereof, an estate the income of
which is subject to United States Federal income tax regardless of source or
that is otherwise subject to United States Federal income tax on a net income
basis in respect of the Senior Notes, or a trust whose administration is subject
to the primary supervision of a United States court and which has one or more
United States fiduciaries who have the authority to control all substantial
decisions of the trust ("U.S. Holders"). This summary does not address tax
considerations arising under the laws of any foreign, state or local
jurisdiction or applicable to investors that may be subject to special tax
rules, such as banks, tax-exempt organizations, insurance companies, dealers in
securities or currencies or persons that will hold Senior Notes as a position in
a hedging transaction, "straddle" or "conversion transaction" or other
integrated investment transaction for tax purposes. The Company has not sought
any ruling from the IRS with respect to the statements made and the conclusions
reached in the following summary, and there can be no assurance that the IRS
will agree with such statements and conclusions.
INVESTORS CONSIDERING THE PURCHASE OF SENIOR NOTES SHOULD CONSULT THEIR OWN
TAX ADVISORS REGARDING THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF
THEIR PARTICIPATION IN THE OFFERING AND THEIR OWNERSHIP AND DISPOSITION OF THE
SENIOR NOTES AND THE EFFECT THAT THEIR PARTICULAR CIRCUMSTANCES MAY HAVE ON SUCH
TAX CONSEQUENCES.
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<PAGE> 15
SEMIANNUAL PAYMENTS ON THE SENIOR NOTES
The Company believes that, under current law, the 2097 Notes more likely
than not will constitute indebtedness for United States Federal income tax
purposes. Semiannual payments on the 2027 Notes and, if treated as debt for
United States Federal income tax purposes, on the 2097 Notes will constitute
interest for United States Federal income tax purposes and generally will be
includable in the income of a U.S. Holder as ordinary income at the time such
interest is received or accrued, in accordance with such U.S. Holder's method of
accounting for United States Federal income tax purposes. The Senior Notes will
not be issued with original issue discount ("OID") within the meaning of the
Code.
If the 2097 Notes are treated as equity for United States Federal income
tax purposes, semiannual payments on the 2097 Notes to U.S. Holders will be
deemed to be dividends for United States Federal income tax purposes to the
extent paid out of the current or accumulated earnings and profits of the
Company (as determined for United States Federal income tax purposes). Holders
who are not U.S. Holders will be subject to United States Federal income tax
withholding at a rate of 30% (or lower treaty rate) on the deemed dividend
payments. Amounts paid in excess of the Company's current and accumulated
earnings and profits will be treated first as a non-taxable return of capital
reducing the U.S. Holder's basis in the 2097 Notes, and any remaining amount
will be treated as capital gain.
SALE, EXCHANGE OR REDEMPTION OF THE SENIOR NOTES
Upon the sale, exchange or redemption of a Senior Note, a U.S. Holder
generally will recognize capital gain or loss equal to the difference between
(i) the amount of cash proceeds and the fair market value of any property
received on the sale, exchange or redemption (except to the extent such amount
is attributable to accrued interest income or any market discount not previously
included in income which is taxable as ordinary income) and (ii) such U.S.
Holder's adjusted tax basis in the Senior Note. A U.S. Holder's adjusted tax
basis in a Senior Note generally will equal the cost of the Senior Note to such
U.S. Holder increased by the amount of interest income on the Senior Note
previously taken into income by the U.S. Holder but not yet received by the U.S.
Holder and by the amount of any market discount previously taken into income by
the U.S. Holder, and reduced by the amount of any bond premium amortized by the
U.S. Holder with respect to the Senior Notes and by any principal payments on
the Senior Notes. Such capital gain or loss will be long-term capital gain or
loss if the U.S. Holder's holding period in the Senior Note is more than one
year at the time of sale, exchange or redemption (subject to the market discount
rules discussed below).
On February 6, 1997, President Clinton submitted his fiscal year 1998
budget proposal under which no deduction would be allowed for interest on an
instrument issued by a corporation that has a maximum weighted average maturity
of more than 40 years. The proposal would be effective generally for instruments
issued on or after the first committee action. There can be no assurance that
President Clinton's proposal or similar legislation affecting the Company's
ability to deduct interest paid on the 2097 Notes will not be enacted or that
any such legislation will not have a retroactive effective date. Any enactment
could give rise to a Tax Event as defined above. See "Certain Terms of the
Senior Notes -- Conditional Right to Advance Maturity Date of or to Redeem the
2097 Notes."
Upon the occurrence of a Tax Event, the Company will have the right,
without the consent of the holders of the 2097 Notes, to (i) advance the
maturity date of the 2097 Notes to the extent required so that interest paid on
the 2097 Notes will be deductible for United States Federal income tax purposes,
or (ii) under certain circumstances to redeem the 2097 Notes then outstanding in
whole (but not in part) at a redemption price equal to the greater of (A) 100%
of the principal amount of the 2097 Notes and (B) the sum of present values of
the Remaining Scheduled Payments on the redemption date discounted to maturity
on a semiannual basis at the Treasury Yield plus basis points, plus in
either case accrued interest to the date of redemption. The Company believes
that under current law the Company's exercise of its right to advance the
maturity date of the 2097 Notes should not be a taxable event to U.S. Holders.
Prospective investors should be aware, however,
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<PAGE> 16
that the Company's exercise of its right to advance the maturity date of the
2097 Notes will be a taxable event to U.S. Holders if the 2097 Notes are
characterized as equity before the maturity is shortened, assuming that the 2097
Notes of shortened maturity are treated as debt. If the 2097 Notes are ever
reclassified as instruments not constituting indebtedness of the Company for
Federal income tax purposes, U.S. Holders should consult their own tax advisors
concerning the tax consequences of the purchase, ownership and disposition of
the 2097 Notes.
AMORTIZABLE BOND PREMIUM
Generally, the excess of a U.S. Holder's tax basis in a Senior Note over
the amount payable at maturity is bond premium that the U.S. Holder may elect to
amortize under Section 171 of the Code on a yield to maturity basis over the
period from the U.S. Holder's acquisition date to the maturity date of the
Senior Note. The amortizable bond premium is treated as an offset to interest
income on the Senior Note for United States Federal income tax purposes. A U.S.
Holder who elects to amortize bond premium must reduce its tax basis in the
Senior Note by the deductions allowable for amortizable bond premium. An
election to amortize bond premium is revocable only with the consent of the IRS
and applies to all obligations owned or acquired by the U.S. Holder on or after
the first day of the taxable year to which the election applies. If a Senior
Note purchased at a premium is redeemed prior to its maturity, a U.S. Holder who
has elected to deduct the bond premium may be permitted to deduct any remaining
unamortized bond premium as an ordinary loss in the taxable year of the
redemption.
The 2097 Notes may be called for redemption at a premium prior to maturity.
See "Certain Terms of the Senior Notes -- Conditional Right to Advance Maturity
Date of or to Redeem the 2097 Notes" above. An earlier call date is treated as
the maturity date of the 2097 Notes and the amount of bond premium is determined
by treating the amount payable on such call date as the amount payable at
maturity, if such a calculation produces a smaller bond premium that the method
described in the preceding paragraph. If a U.S. Holder is required to amortize
and deduct the bond premium by reference to a certain call date, the 2097 Notes
will be treated as maturing on that date for the amount then payable. If the
2097 Notes are not redeemed on that call date, the 2097 Notes will be treated as
reissued on that date for the amount of the call price on that date. If a 2097
Note purchased at a premium is redeemed prior to its maturity, a U.S. Holder who
has elected to deduct the bond premium may be permitted to deduct any remaining
unamortized bond premium as an ordinary loss in the taxable year of the
redemption.
MARKET DISCOUNT
A Senior Note has market discount if it is purchased at an amount less than
the issue price and less than the stated redemption price at maturity of the
Senior Note. De minimis market discount is not subject to the following rules. A
U.S. Holder of a Senior Note with market discount who does not elect to include
market discount in income as it accrues must treat a portion of the gain
recognized on the disposition or retirement of the Senior Note as ordinary
income. The amount of gain treated as ordinary income would equal the lesser of
(i) the gain recognized (or the appreciation, in the case of a nontaxable
transaction such as a gift) or (ii) the portion of the market discount that
accrued on a ratable basis (or, if elected, on a constant interest rate basis)
while the Senior Note was held by the U.S. Holder.
A U.S. Holder who acquires a Senior Note at a market discount also may be
required to defer a portion of any interest expense that otherwise may be
deductible on any indebtedness incurred or maintained to purchase or carry such
Senior Note until the U.S. Holder disposes of the Senior Note in a taxable
transaction. Moreover, to the extent of any accrued market discount on such
Senior Note, any partial principal payment with respect to the Senior Note will
be includible as ordinary income upon receipt, as will the fair market value of
the Senior Note on certain otherwise non-taxable transfers (such as gifts).
A U.S. Holder of Senior Notes acquired at a market discount may elect for
United States Federal income tax purposes to include market discount in gross
income as the discount accrues, either on a straight-line basis or on a constant
interest rate basis. This current inclusion election, once made, applies to all
market discount obligations acquired by the U.S. Holder on or after the first
day of the first taxable year to which the election
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<PAGE> 17
applies and may not be revoked without the consent of the IRS. If a U.S. Holder
of Senior Notes makes such an election, the foregoing rules with respect to the
recognition of ordinary income on sales and other dispositions of such debt
instruments and on any partial principal payment with respect to the Senior
Notes, and the deferral of interest deductions on indebtedness incurred or
maintained to purchase or carry such debt instruments, would not apply.
INFORMATION REPORTING AND BACKUP WITHHOLDING TAX
In general, information reporting requirements may apply to principal and
interest payments on a Senior Note and to payments of the proceeds of the sale
of a Senior Note. A 31% backup withholding tax may apply to such payments unless
the U.S. Holder (i) is a corporation or comes within certain other exempt
categories and, when required, demonstrates its exemption, or (ii) provides a
correct taxpayer identification number, certifies as to no loss of exemption
from backup withholding and otherwise complies with applicable requirements of
the backup withholding rules. A U.S. Holder of a Senior Note who does not
provide the Company with the U.S. Holder's correct taxpayer identification
number may be subject to penalties imposed by the IRS. Any amounts withheld
under the backup withholding rules from a payment to a U.S. Holder will be
allowed as a credit against such U.S. Holder's United States Federal income tax,
provided that the required information is furnished to the IRS.
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
(the "Underwriting Agreement") among the Company and Morgan Stanley & Co.
Incorporated, UBS Securities LLC and Chase Securities Inc. (collectively, the
"Underwriters"), the Company has agreed to sell to the Underwriters, and the
Underwriters have agreed, severally and not jointly, to purchase from the
Company, the respective principal amount of Senior Notes set forth below
opposite their respective names.
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT
----------------------------
UNDERWRITERS 2027 NOTES 2097 NOTES
------------ ------------ ------------
<S> <C> <C>
Morgan Stanley & Co. Incorporated....................... $ $
UBS Securities LLC......................................
Chase Securities Inc. ..................................
------------ ------------
Total......................................... $250,000,000 $100,000,000
============ ============
</TABLE>
The Underwriters propose to offer each series of the Senior Notes in part
directly to the public at the respective initial public offering price set forth
on the cover page of this Prospectus Supplement and in part to certain
securities dealers at such prices less a concession not to exceed % of the
principal amount of the 2027 Notes and not to exceed % of the principal
amount of the 2097 Notes. The Underwriters may allow, and such dealers may
reallow, a concession not to exceed % of the principal amount of the 2027
Notes, and a concession not to exceed % of the principal amount of the 2097
Notes, to certain brokers and dealers. After the Senior Notes are released for
sale to the public, the offering prices and other selling terms may from time to
time be varied by the Underwriters.
The Underwriting Agreement provides that the obligation of the Underwriters
to pay for and accept delivery of the Senior Notes is subject to certain
conditions, including delivery of certain legal opinions by counsel for the
Underwriters.
The Underwriting Agreement provides that the Company will indemnify the
Underwriters against certain liabilities under the Securities Act and will
contribute to payments the Underwriters may be required to make in respect
thereof.
The Senior Notes will be new issues of securities for which there is
currently no market. Although the Underwriters have informed the Company that
they currently intend to make a market in the Senior Notes,
S-16
<PAGE> 18
they are not obligated to do so, and any such market making may be discontinued
at any time without notice. Accordingly, there can be no assurance as to the
development or liquidity of any market for the Senior Notes.
In the ordinary course of their respective businesses, each of the
Underwriters, or affiliates thereof, have from time to time provided, and may in
the future provide, investment banking and/or commercial banking services to the
Company and its affiliates in connection with various transactions and proposed
transactions.
Union Bank of Switzerland ("UBS"), an affiliate of UBS Securities LLC, one
of the Underwriters, is the agent and a lender under the Credit Agreement, and
Texas Commerce Bank National Association ("TCB"), an affiliate of Chase
Securities Inc., one of the Underwriters, is a lender under the Credit
Agreement. It is expected that a portion of the debt outstanding under the
Credit Agreement will be repaid from the net proceeds of the issuance of the
Senior Notes offered hereby and that UBS and TCB will receive their respective
proportionate share of such repayment. See "Use of Proceeds." More than 10% of
the net proceeds from the offering of the Senior Notes is expected to be used to
repay amounts outstanding under the Credit Agreement. Accordingly, the offerings
are being made in accordance with Section 2710(c)(8) of the Conduct Rules of the
National Association of Securities Dealers, Inc. UBS Securities LLC and Chase
Securities Inc. are participating in the offerings on the same terms as the
other Underwriters and will not receive any benefit in connection with the
offerings other than customary management, underwriting and selling fees.
In order to facilitate the offering of the Senior Notes, the Underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of the Senior Notes. Specifically, the Underwriters may over-allot in
connection with the offering, creating a short position in the Senior Notes for
their own account. In addition, to cover over-allotments or to stabilize the
price of the Senior Notes, the Underwriters may bid for, and purchase, the
Senior Notes in the open market. Finally, the underwriting syndicate may reclaim
selling concessions allowed to an underwriter or a dealer for distributing the
Senior Notes in the offering, if the syndicate repurchases previously
distributed Senior Notes in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities may stabilize
or maintain the market price of the Senior Notes above independent market
levels. The Underwriters are not required to engage in these activities and may
end any of these activities at any time.
VALIDITY OF THE SENIOR NOTES
The validity of the Senior Notes offered hereby will be passed upon for the
Company by Thompson & Knight, P.C., Dallas, Texas, and for the Underwriters by
Sullivan & Cromwell, New York, New York. Harold F. Kleinman, a shareholder of
Thompson & Knight, P.C., is a director of the Company and is the beneficial
owner of 200 shares of Common Stock of the Company.
S-17
<PAGE> 19
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to pay be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
PROSPECTUS
NOBLE AFFILIATES, INC.
DEBT SECURITIES
Noble Affiliates, Inc. (the "Company") may offer and issue from time to
time its debt securities (the "Debt Securities"), which may be either senior
debt securities (the "Senior Debt Securities") or subordinated debt securities
(the "Subordinated Debt Securities"), consisting of debentures, notes, bonds
and/or other unsecured evidences of indebtedness in one or more series. The Debt
Securities will be offered at an aggregate initial offering price not to exceed
$575 million, at prices and on terms to be determined at the time of sale.
The Senior Debt Securities will rank equally with all other unsubordinated
and unsecured indebtedness of the Company. The Subordinated Debt Securities will
be subordinated to all existing and future Senior Indebtedness (as defined) of
the Company. The Debt Securities will be effectively subordinated to all
indebtedness and liabilities of subsidiaries of the Company.
The accompanying Prospectus Supplement sets forth with regard to the
particular Debt Securities in respect of which this Prospectus is being
delivered, the title, aggregate principal amount, denominations, maturity, rate
and time of payment of interest, any terms for redemption at the option of the
Company or the holder, any terms for sinking fund payments, any conversion or
exchange rights, any listing on a securities exchange, the initial public
offering price and any other terms in connection with the offering and sale of
such Debt Securities. The Prospectus Supplement will also contain information,
as applicable, about certain United States Federal income tax considerations
relating to the Debt Securities in respect of which this Prospectus is being
delivered.
The common stock of the Company, par value $3.33 1/3 per share (the "Common
Stock"), is listed on the New York Stock Exchange under the symbol "NBL."
The Company may sell Debt Securities to or through underwriters or dealers,
and also may sell Debt Securities directly to other purchasers or through
agents. The accompanying Prospectus Supplement sets forth the names of any
underwriters or agents involved in the sale of Debt Securities in respect of
which this Prospectus is being delivered, the principal amounts, if any, to be
purchased by underwriters and the compensation of such underwriters or agents.
See "Plan of Distribution."
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
This Prospectus may not be used to consummate sales of Debt Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is December 27, 1996.
<PAGE> 20
IN CONNECTION WITH THE OFFERINGS, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS THAT STABILIZE OR MAINTAIN THE MARKET PRICE OF ANY DEBT SECURITIES
OFFERED HEREBY AND THE COMMON STOCK OF THE COMPANY AT LEVELS ABOVE THAT WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON
THE NEW YORK STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at Judiciary Plaza, 450 Fifth
Street N.W., Room 1024, Washington, D.C. 20549, and at the Commission's regional
offices at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511, and Seven World Trade Center, New York, New York
10048. Copies of such material can also be obtained from the Commission at
prescribed rates through its Public Reference Section at 450 Fifth Street N.W.,
Room 1024, Washington, D.C. 20549. In addition, similar information concerning
the Company can be inspected and copied at the New York Stock Exchange, 20 Broad
Street, New York, NY 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933 (the "Securities Act") with respect to the
Debt Securities offered hereby (including all amendments or supplements thereto,
the "Registration Statement"). This Prospectus, which forms a part of the
Registration Statement, does not contain all the information set forth in the
Registration Statement, certain parts of which have been omitted in accordance
with the rules and regulations of the Commission. Statements contained herein
concerning the provisions of certain documents are not necessarily complete and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
2
<PAGE> 21
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission (File No.
0-7062) pursuant to the Exchange Act are incorporated herein by reference: (i)
Annual Report on Form 10-K for the year ended December 31, 1995, as amended by
Form 10-K/A (No. 1) dated June 27, 1996; (ii) Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1996, June 30, 1996 and September 30, 1996; and
(iii) Current Report on Form 8-K (Date of Event: July 31, 1996) dated August 13,
1996, as amended by Form 8-K/A (No. 1) dated September 27, 1996. All other
documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference in this Prospectus from the date of filing thereof.
Any statement contained herein or in a document or information incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded to the extent that a statement contained herein or in any
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of any such person, a
copy of any or all of the foregoing documents or information that has been
incorporated by reference in this Prospectus, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests should be directed to William D. Dickson, Vice
President -- Finance and Treasurer, Noble Affiliates, Inc., P.O. Box 1967,
Ardmore, Oklahoma 73402, (405) 223-4110.
3
<PAGE> 22
THE COMPANY
GENERAL
The Company is an independent energy company engaged, through its
subsidiaries, in the exploration, production and marketing of crude oil and
natural gas. It conducts operations throughout the major basins of the United
States as well as in selected international areas. The Company is one of the
largest independent oil and gas companies in the United States.
The Company, incorporated in Delaware in 1969, and its predecessors have
been engaged in oil and gas exploration and production since 1932. Its principal
executive offices are located at 110 West Broadway, Ardmore, Oklahoma 73401, and
its telephone number is (405) 223-4110. Unless otherwise indicated or the
context otherwise requires, the "Company" refers to Noble Affiliates, Inc. and
its subsidiaries (including EDC) and predecessors and "EDC" refers to Energy
Development Corporation and its subsidiaries (see "-- Business Strategy -- EDC
Acquisition").
BUSINESS STRATEGY
The Company's principal business strategy is to increase reserves,
production and cash flow through a balanced program of exploratory and
development drilling, supplemented by strategic acquisitions. During the
three-year period ended December 31, 1995, the Company replaced approximately
273 percent of its production at an average cost of $0.86 per Mcfe. From January
1, 1993 through December 31, 1995, the Company (not including EDC) increased its
proved reserves from 372.2 Bcf of gas and 47.4 MMbbls of oil to 850.3 Bcf of gas
and 84.0 MMbbls of oil. Additionally, the Company (not including EDC) increased
its production from 75.1 Bcf of gas and 7.4 MMbbls of oil in 1993 to 97.0 Bcf of
gas and 9.6 MMbbls of oil in 1995.
The Company seeks to achieve operating and technical efficiencies by
focusing its exploration and development drilling efforts in areas in which the
Company has a concentration of existing producing properties, the most important
of which is its portfolio of properties in the Gulf of Mexico. The Company seeks
to retain the largest available interest consistent with its analysis of the
risks and potential returns of a prospect and to serve as operator whenever
appropriate. Typically, the Company finances its exploration and development
drilling with internally generated funds.
The Company seeks to supplement its exploration and development drilling
activities with acquisitions of producing and non-producing properties. The
Company attempts to acquire properties that complement its existing operations,
thereby allowing the Company to use its engineering knowledge and expertise in
the area, and in many cases its existing facilities, to find, develop and
produce reserves in a cost-effective manner. In addition, the Company actively
seeks to increase its average working interest per well by purchasing additional
interests in existing properties and divesting non-strategic or economically
marginal wells or wells in which it has a small interest.
EDC Acquisition
Pursuant to its stated business strategy, on July 31, 1996, the Company
purchased all of the outstanding common stock of Energy Development Corporation,
a wholly owned indirect subsidiary of Public Service Enterprise Group
Incorporated (the "EDC Acquisition"), for approximately $768 million in cash.
EDC's major properties are located domestically in the Gulf of Mexico and
onshore Louisiana and Texas, and internationally in Argentina and the United
Kingdom sector of the North Sea.
As of December 31, 1995, EDC's estimated proved reserves were approximately
460.9 Bcf of gas and 37.5 MMbbls of oil, as evaluated by Samedan Oil Corporation
("Samedan"), a wholly owned subsidiary of the Company. Approximately 67 percent
of such reserves were natural gas and 75 percent of such reserves were located
in the United States. EDC's average daily production in 1995 and the nine months
ended September 30, 1996 was approximately 205 MMcf and 213 MMcf of gas and
11,000 bbls and 11,650 bbls of oil, respectively. Approximately 86 percent of
such production of EDC for the nine months ended
4
<PAGE> 23
September 30, 1996 was located in the United States. As of December 31, 1995,
EDC held 483,344 net domestic undeveloped leasehold acres, and royalty,
overriding royalty and other mineral interests in 37,663 net acres.
On a pro forma basis giving effect to the EDC Acquisition, as of December
31, 1995, the Company's estimated proved reserves were approximately 2,040.2
Bcfe. Natural gas accounted for approximately 64 percent of such proved
reserves. Approximately 86 percent of such proved reserves were located in the
United States, most notably in the Gulf of Mexico, with the balance located in
Argentina, the North Sea, Equatorial Guinea and Canada. The Company's average
daily production in 1995 and the nine months ended September 30, 1996, pro forma
for the EDC Acquisition, was approximately 696.9 MMcfe and 836.7 MMcfe,
respectively. Approximately 91 percent of such production for the nine months
ended September 30, 1996 was located in the United States.
The Company believes that the EDC Acquisition achieved several of its
strategic objectives. First, it materially enhanced and leveraged the Company's
significant position in the Gulf of Mexico where the Company's proved reserves
as of December 31, 1995 (pro forma for the EDC Acquisition) increased 46 percent
to approximately 993.9 Bcfe. Second, it furthers the Company's goals of owning
large working interests in oil and gas properties and operating such properties
whenever appropriate. The Company believes that it can capitalize on its
capabilities as a low-cost operator and realize cost savings, particularly in
the Gulf of Mexico, where it already has extensive operations in place. Third,
the longer-lived reserves of certain of EDC's domestic onshore and international
properties provide an attractive balance to the Company's shorter-lived fields
in the Gulf of Mexico. Fourth, the acquisition of international reserves in
Argentina and the United Kingdom sector of the North Sea adds geographic
diversity to the Company's portfolio of oil and gas properties consistent with
its traditional risk profile.
In connection with the EDC Acquisition, the Company entered into a new $800
million bank credit facility pursuant to a credit agreement (the "Credit
Agreement") dated as of July 31, 1996. Borrowings of $800 million under the
Credit Agreement were used to fund the purchase price for EDC and, together with
funds on hand, to repay $48 million of outstanding indebtedness under the
Company's then existing bank credit agreement, which was cancelled in connection
with the repayment thereunder. The Credit Agreement generally permits the
Company to prepay at its option, in whole or in part and without premium or
penalty, the indebtedness under the Credit Agreement. The Company therefore has
the ability to consider the refinancing of part or all of the indebtedness
outstanding under the Credit Agreement from time to time in the public or
private financial markets on such terms as it considers satisfactory.
EXPLORATION AND DEVELOPMENT
The Company has numerous drilling and development opportunities throughout
its portfolio, the most important of which are on its extensive Gulf of Mexico
properties. The Company's capital expenditures in the nine months ended
September 30, 1996 for exploration and development drilling, not including any
such drilling associated with properties acquired through the EDC Acquisition,
were approximately $202.4 million, of which approximately 72 percent was spent
in the Gulf of Mexico. The Company currently estimates that its capital
expenditures for exploration and development drilling for the last three months
of 1996, including any such drilling associated with properties acquired through
the EDC Acquisition, will be approximately $54 million, of which approximately
70 percent is scheduled to be spent in the Gulf of Mexico.
5
<PAGE> 24
PROPERTIES
Reserves
The following table sets forth information as to estimated net proved and
proved developed reserves as of December 31, 1995 for (i) the Company, (ii) EDC
and (iii) the Company on a pro forma combined basis, assuming the EDC
Acquisition occurred on December 31, 1995. For additional information about the
Company's reserves and the standardized measure of discounted future net cash
flows attributable thereto (not including EDC), see Note 10 of the Notes to
Consolidated Financial Statements incorporated in this Prospectus by reference
to the Company's Form 10-K for the year ended December 31, 1995, as amended.
TOTAL PROVED AND PROVED DEVELOPED
RESERVES AS OF DECEMBER 31, 1995
<TABLE>
<CAPTION>
COMPANY EDC(1) PRO FORMA COMBINED
---------------- ---------------- ------------------
GAS OIL GAS OIL GAS OIL
(BCF) (MMBBLS) (BCF) (MMBBLS) (BCF) (MMBBLS)
----- -------- ----- -------- ------- --------
<S> <C> <C> <C> <C> <C> <C>
Total Proved Reserves:
Domestic:
Offshore Gulf of Mexico.............. 513.3 27.9 241.2 12.0 754.5 39.9
Onshore.............................. 305.0 43.0 171.8 4.7 476.8 47.7
----- ---- ----- ---- ------- -----
818.3 70.9 413.0 16.7 1,231.3 87.6
International........................... 32.0 13.1 47.9 20.8 79.9 33.9
----- ---- ----- ---- ------- -----
850.3 84.0 460.9 37.5 1,311.2 121.5
===== ==== ===== ==== ======= =====
Total Proved Developed
Reserves...................... 782.8 79.0 409.8 29.0 1,192.6 108.0
===== ==== ===== ==== ======= =====
</TABLE>
- ---------------
(1) In connection with the EDC Acquisition, Samedan's in-house engineers
prepared estimates of the proved reserves of EDC based on geological and
engineering evaluations as of December 31, 1995. Prior to closing of the EDC
Acquisition, Miller and Lents, Ltd., independent petroleum consultants,
estimated the proved reserves of EDC as of July 1, 1996. A summary of such
estimates, together with a summary of the estimates of EDC's proved reserves
prepared by Samedan as of July 31, 1996 (the closing date of the EDC
Acquisition), is set forth in the Company's Form 8-K (Date of Event: July
31, 1996), as amended, which is incorporated by reference in this
Prospectus. After taking into account adjustments for EDC's production and
exploration and development activities during 1996, there are no material
differences in the aggregate among such estimate of proved reserves prepared
by Miller and Lents, Ltd. and the estimates of proved reserves prepared by
Samedan as of December 31, 1995 and July 31, 1996.
Samedan's in-house engineers annually estimate the Company's proved
reserves, and Samedan does not employ independent engineers to prepare, review
or audit such estimates.
Because of the direct relationship between quantities of proved undeveloped
reserves and development plans, Samedan has assigned to undeveloped locations
only those reserves that will definitely be drilled, and only those reserves
assigned to the undeveloped portions of secondary or tertiary projects that will
definitely be developed have been included in proved reserves and proved
undeveloped reserves. The Company has interests in certain tracts that may have
additional hydrocarbon quantities that were not classified at the time of the
estimate as proved reserves because Samedan did not have definitive plans at
such time to drill or develop these tracts, but which tracts may be reclassified
as proved reserves in the future as a result of the Company's exploration and
development programs. Under the regulations of the Commission, a company may
classify reserves as proved undeveloped reserves, assuming they otherwise meet
the Commission's criteria for proved reserves, without regard to whether such
company has definitive plans to drill or develop such reserves.
There are numerous uncertainties inherent in estimating quantities of
proved oil and gas reserves and in projecting the future rates of production and
timing of development expenditures. Oil and gas reserve engineering is a
subjective process of estimating underground accumulations of oil and gas that
cannot be
6
<PAGE> 25
precisely measured, and estimates of other engineers might differ materially
from the estimates contained or incorporated by reference in this Prospectus.
The accuracy of any reserve estimate is a function of the quality of available
data and of engineering and geological interpretation and judgment. Results of
drilling, testing and production subsequent to the date of the estimate may
justify revision of such estimate. Accordingly, reserve estimates are often
different from the quantities of oil and gas that are ultimately recovered. In
addition, estimates of the standardized measure of discounted future net cash
flows attributable to the Company's proved reserves are based on certain
assumptions regarding future oil and gas prices, production levels, and
operating and development costs that may not prove to be correct. Any
significant variance in these assumptions could materially affect the estimated
quantities of proved reserves and future net cash flows therefrom contained or
incorporated by reference in this Prospectus.
The Company periodically estimates restoration and abandonment costs
relating to its oil and gas properties that will be required to be paid at the
end of the properties' productive lives. The estimated costs, as adjusted from
time to time, are recorded by charges to depreciation, depletion and
amortization expense in the Company's financial statements. The estimated
restoration and abandonment costs are also included in estimated future
production and development costs for purposes of estimating the future net cash
flows attributable to the Company's proved reserves.
CONVERSION OF CONVERTIBLE NOTES
In October 1996, the Company called for redemption all $230,000,000
outstanding principal amount of its 4 1/4% Convertible Subordinated Notes due
2003 (the "Convertible Notes"). Prior to the close of business on November 1,
1996, an aggregate of $229,962,000 principal amount of the Convertible Notes
were converted into 6,274,474 shares of Common Stock, at the stated conversion
price of $36.65 of principal amount of Convertible Notes per share of Common
Stock. The Company redeemed the remaining $38,000 outstanding principal amount
of the Convertible Notes using the proceeds of the sale of 1,036 shares of
Common Stock to a standby underwriter engaged in connection with the redemption.
HEDGING ARRANGEMENTS
The Company, from time to time, uses various hedging arrangements in
connection with anticipated crude oil and natural gas sales of its own
production and third party production purchased and sold by its natural gas
marketing subsidiary to minimize the impact of product price fluctuations. Such
arrangements include fixed price hedges, costless collars and other contractual
arrangements. Although these hedging arrangements expose the Company to credit
risks, the Company monitors the creditworthiness of its counterparties, which
generally are major institutions, and believes that losses from nonperformance
are unlikely to occur. A discussion of the historical effect of such hedging
arrangements and of the Company's hedging arrangements in respect of future
anticipated production is included in the Company's annual report on Form 10-K
and quarterly reports on Form 10-Q incorporated by reference in this Prospectus.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus Supplement,
the net proceeds from the sale of Debt Securities will be used for general
corporate purposes, which may include refinancings of indebtedness, working
capital, capital expenditures, acquisitions, and repurchases and redemptions of
securities.
7
<PAGE> 26
SELECTED FINANCIAL DATA
The following table sets forth certain consolidated (i) historical
financial data of the Company for each of the three years in the period ended
December 31, 1995 and for the nine months ended September 30, 1995 and 1996 and
(ii) pro forma financial data of the Company that give effect to the EDC
Acquisition and the financing thereof which occurred on July 31, 1996. Financial
statement data for the historical interim periods are unaudited but, in the
opinion of management, include all adjustments (which include only normal
recurring accruals) necessary for a fair presentation of the information. Pro
forma financial data also are unaudited. The results of operations for interim
periods are not necessarily indicative of results for the entire year. The table
should be read in conjunction with (i) the Consolidated Financial Statements and
related notes thereto and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" incorporated in this Prospectus by
reference to the Company's Form 10-K for the year ended December 31, 1995, as
amended, and Form 10-Q for the quarter ended September 30, 1996 and (ii) the
Consolidated Financial Statements and related notes thereto of EDC and the Pro
Forma Consolidated Condensed Financial Statements and related notes thereto
incorporated in this Prospectus by reference to the Company's Form 8-K (Date of
Event: July 31, 1996), as amended.
<TABLE>
<CAPTION>
COMPANY HISTORICAL PRO FORMA(1)
----------------------------------------------------------- -----------------------------
NINE MONTHS
ENDED NINE MONTHS
YEAR ENDED DECEMBER 31, SEPTEMBER 30, YEAR ENDED ENDED
-------------------------------- ----------------------- DECEMBER 31, SEPTEMBER 30,
1993 1994 1995 1995 1996 1995 1996
---------- -------- -------- ---------- ---------- ------------ -------------
(UNAUDITED) (UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues:
Gas and oil sales and
royalties.................. $ 278,004 $306,169 $328,134 $ 234,150 $ 396,149 $532,184 $539,575
Gathering, marketing and
processing................. -- 43,921 112,702 71,334 209,796 202,751 278,427
Other income................. 8,579 8,299 46,182(2) 3,790 5,282 107,822(3) 9,356
---------- -------- -------- ---------- ---------- -------- --------
Total.................. 286,583 358,389 487,018 309,274 611,227 842,757 827,358
---------- -------- -------- ---------- ---------- -------- --------
Costs and expenses:
Oil and gas operations....... 75,110 74,661 81,735 61,775 83,595 90,165 118,116
Oil and gas exploration...... 36,473 54,321 33,246 19,701 38,797 110,058 61,920
Gathering, marketing and
processing................. -- 42,758 107,867 69,402 193,687 193,472 258,204
Depreciation, depletion and
amortization............... 107,215 127,470 200,914(4) 106,667 153,668 335,563(4) 233,608
Selling, general and
administrative............. 31,784 36,408 36,514 27,264 32,671 49,908 37,175
Interest, net of amount
capitalized................ 15,342 17,546 18,744 13,919 22,116 63,470 50,423
---------- -------- -------- ---------- ---------- -------- --------
Total.................. 265,924 353,164 479,020 298,728 524,534 842,636 759,446
---------- -------- -------- ---------- ---------- -------- --------
Income before taxes............ 20,659 5,225 7,998 10,546 86,693 121 67,913
Income tax provision........... 8,034 2,059 3,912 4,020 31,849 48 22,867
---------- -------- -------- ---------- ---------- -------- --------
Net income..................... $ 12,625 $ 3,166 $ 4,086 $ 6,526 $ 54,844 $ 73 $ 45,046
========== ======== ======== ========== ========== ======== ========
Primary earnings per share..... $ .26 $ .06 $ .08 $ .13 $ 1.09 $ .00 $ .90
========== ======== ======== ========== ========== ======== ========
Fully diluted earnings per
share(5)..................... $ .26 $ .06 $ .08 $ .13 $ 1.04 $ .00 $ .84
========== ======== ======== ========== ========== ======== ========
Cash dividends paid............ $ .16 $ .16 $ .16 $ .12 $ .12 $ .16 $ .12
========== ======== ======== ========== ========== ======== ========
OTHER FINANCIAL DATA:
Net cash provided by operating
activities................... $ 139,381 $188,621 $238,920 $ 180,372 $ 293,664
Capital expenditures........... 510,113 161,344 259,242 197,060 944,007
BALANCE SHEET DATA (AT PERIOD
END):
Property, plant and equipment,
net.......................... $ 794,605 $813,380 $843,945 $ 893,434 $1,619,732
Total assets................... 1,067,996 933,516 989,176 1,006,501 1,916,963
Long-term debt (including
current installments)........ 453,760 376,956 376,992 401,983 1,129,019(6)
Shareholders' equity........... 415,432 412,066 411,911 413,439 465,230(6)
</TABLE>
- ---------------
(1) The pro forma financial data assume the EDC Acquisition and the financing
thereof occurred on January 1, 1995.
8
<PAGE> 27
(2) Includes $39 million related to the settlement of a Columbia Gas
Transmission Corporation bankruptcy claim.
(3) Includes $74 million ($39 million for the Company and $35 million for EDC)
related to the settlement of Columbia Gas Transmission Corporation
bankruptcy claims.
(4) Includes a $59.5 million charge related to the write-down of certain assets
in connection with the Company's adoption in 1995 of Financial Accounting
Standards No. 121.
(5) Amounts shown were computed using the "if converted method" assuming the
Convertible Notes were converted into Common Stock at the beginning of the
period. The Convertible Notes were antidilutive for all periods ending on or
before December 31, 1995. See footnote (6) below.
(6) Subsequent to September 30, 1996, $229,962,000 aggregate principal amount of
the Convertible Notes were converted into 6,274,474 shares of Common Stock,
and the Company redeemed the remaining $38,000 principal amount of the
Convertible Notes using the proceeds from the sale of 1,036 shares of Common
Stock to a standby underwriter engaged in connection with the redemption of
the Convertible Notes. See "The Company -- Conversion of Convertible Notes."
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of each series of Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Debt Securities so offered will be described in the Prospectus Supplement
relating to such series of Debt Securities.
Debt Securities may be issued from time to time in one or more series by
the Company. The Debt Securities will constitute indebtedness designated as
either Senior Debt Securities or Subordinated Debt Securities. The Senior Debt
Securities will be issued under an indenture (the "Senior Indenture") to be
entered into between the Company and a trustee (the "Senior Trustee") prior to
the issuance of such Senior Debt Securities. The Subordinated Debt Securities
will be issued under an indenture (the "Subordinated Indenture") to be entered
into between the Company and a trustee (the "Subordinated Trustee") prior to the
issuance of such Subordinated Debt Securities. The Senior Indenture and the
Subordinated Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures." The Senior Trustee and the
Subordinated Trustee are sometimes hereinafter referred to individually as a
"Trustee" and collectively as the "Trustees." Information regarding the Trustee
under an Indenture will be included in any Prospectus Supplement relating to the
Debt Securities issued thereunder.
The following discussion includes a summary description of all material
terms of the Indentures, other than terms which are specific to a particular
series of Debt Securities and which will be described in the Prospectus
Supplement relating to such series. The following summaries do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indentures, including the definitions therein of
certain terms capitalized in this Prospectus. Wherever particular Sections or
Articles or defined terms of the Indentures are referred to herein or in a
Prospectus Supplement, such Sections, Articles or defined terms are incorporated
herein or therein by reference. The term "Company" in this section of the
Prospectus means Noble Affiliates, Inc.
Other than as set forth under "Provisions Applicable to the Senior
Indenture -- Certain Covenants of the Company," and only to the extent
applicable to the Senior Debt Securities of a particular series, as indicated by
the applicable Prospectus Supplement, the Indentures do not contain any
provisions which are intended to afford holders of the Debt Securities
protection in the event of a highly leveraged or other transaction involving the
Company or in the event of a material adverse change in the Company's financial
condition or results of operations.
GENERAL PROVISIONS APPLICABLE TO BOTH INDENTURES
The Indentures do not limit the aggregate amount of Debt Securities which
may be issued thereunder, and Debt Securities may be issued thereunder from time
to time in separate series up to the aggregate amount
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authorized by the Company for each such series. Debt Securities of a series may
be issued in registered form without coupons ("Registered Debt Securities"), in
bearer form with or without coupons attached ("Bearer Debt Securities") or in a
form of one or more Global Securities in registered or bearer form (each, a
"Global Security"). Bearer Debt Securities, if any, will be offered only to
non-United States persons and to offices located outside of the United States of
certain United States financial institutions. The Debt Securities will be
unsecured obligations of the Company. The Senior Debt Securities will be
unsubordinated obligations of the Company and will rank pari passu with all
other unsecured and unsubordinated indebtedness of the Company. The Subordinated
Debt Securities will be subordinated in right of payment to the prior payment in
full of the Senior Indebtedness (as defined) of the Company, as described below
under "Provisions Applicable to the Subordinated Indenture -- Subordination" and
in a Prospectus Supplement applicable to an offering of Subordinated Debt
Securities.
Since the Company is a holding company, its rights and the rights of its
creditors, including the holders of the Debt Securities, to participate in the
distribution of the assets of the subsidiaries of the Company upon any
liquidation or reorganization of any such subsidiary, or otherwise, will be
subject to the prior claims of creditors of such subsidiaries, except to the
extent that the Company may itself be a creditor with recognized claims against
any such subsidiary. The ability of the Company to pay principal of and interest
on the Debt Securities is, to a large extent, dependent upon the payment to it
of dividends, interest or other charges by the subsidiaries of the Company.
The applicable Prospectus Supplement will describe the following terms of
the series of Debt Securities in respect of which this Prospectus is being
delivered: (1) the title of such Debt Securities; (2) any limit on the aggregate
principal amount of such Debt Securities; (3) whether such Debt Securities will
be issued as Registered Debt Securities, Bearer Debt Securities or any
combination thereof, and any limitation on issuance of such Bearer Debt
Securities and any provisions regarding the transfer or exchange of such Bearer
Debt Securities, including exchange for Registered Debt Securities of the same
series; (4) whether any of such Debt Securities are to be issuable as a Global
Security, whether such Global Securities are to be issued in temporary global
form or permanent global form, and, if so, the terms and conditions, if any,
upon which interests in such Global Securities may be exchanged, in whole or in
part, for the individual Debt Securities represented thereby; (5) the person to
whom any interest on any Debt Security of the series shall be payable if other
than the person in whose name the Debt Security is registered on the Regular
Record Date; (6) the date or dates on which such Debt Securities will mature;
(7) the rate or rates of interest, if any, or the method of calculation thereof,
which such Debt Securities will bear; (8) the date or dates from which any such
interest will accrue, the Interest Payment Dates on which any such interest on
such Debt Securities will be payable and the Regular Record Dates for any
interest payable on any Interest Payment Date; (9) the place or places where the
principal of, premium, if any, and interest on such Debt Securities will be
payable; (10) the period or periods within which, the events upon the occurrence
of which, and the price and prices at which, such Debt Securities may, pursuant
to any optional or mandatory provisions, be redeemed or purchased, in whole or
in part, by the Company and any terms and conditions relevant thereto; (11) the
obligation of the Company, if any, to redeem or repurchase such Debt Securities
at the option of the holders thereof; (12) the denominations in which any such
Debt Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof; (13) the currency, currencies or currency unit or
units of payment of principal of and any premium and interest on such Debt
Securities if other than U.S. dollars; (14) any index or formula used to
determine the amount of payments of principal of and any premium and interest on
such Debt Securities; (15) if the principal amount of or any premium or interest
on such Debt Securities is to be payable, at the election of the Company or a
holder thereof, in one or more currencies or currency units other than that or
those in which such Debt Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Debt Securities of such series as to which such election
is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made; (16) the place or places
where such Debt Securities may be presented for exchange, registration of
transfer or, if applicable, conversion; (17) if other than the principal amount
thereof, the portion the principal amount of such Debt Securities of the series
which will be payable upon declaration of the acceleration of the Maturity
thereof; (18) with respect to any Senior Debt Securities, the applicability of
any provisions described under "Provisions of the Senior Indenture -- Certain
Covenants of the Company";
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(19) the applicability of any provisions described under "Defeasance"; (20) the
terms and conditions, if any, pursuant to which such Debt Securities are
convertible or exchangeable into Common Stock or other securities or instruments
and (21) any other terms of such Debt Securities not inconsistent with the
provisions of the applicable Indenture.
Debt Securities may be issued at a discount from their principal amount.
United States Federal income tax considerations and other special considerations
applicable to any such Original Issue Discount Securities will be described in
the applicable Prospectus Supplement.
If the purchase price of any Debt Securities is denominated in a foreign
currency or currencies or a foreign currency unit or units or if the principal
amount of and any premium and interest on any series of Debt Securities is
payable in a foreign currency or currencies or a foreign currency unit or units,
the restrictions, elections, general tax considerations, specific terms and
other information with respect to such issue of Debt Securities and such a
foreign currency or currencies or a foreign currency unit or units will be set
forth in the applicable Prospectus Supplement.
Form, Exchange, Registration, Conversion and Transfer
Debt Securities are issuable in definitive form as Registered Debt
Securities, as Bearer Debt Securities or both. Unless otherwise indicated in an
applicable Prospectus Supplement, Bearer Debt Securities will have interest
coupons attached. Debt Securities are also issuable in temporary or permanent
global form.
Registered Debt Securities of any series will be exchangeable for other
Registered Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. In addition, with
respect to any series of Bearer Debt Securities, at the option of the holder,
subject to the terms of the Indenture, such Bearer Debt Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
will be exchangeable into Registered Debt Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor.
Bearer Debt Securities surrendered in exchange for Registered Debt Securities
between a Regular Record Date or a Special Record Date and the relevant date for
payment of interest shall be surrendered without the coupon relating to such
date for payment of interest, and interest accrued as of such date will not be
payable in respect of the Registered Debt Security issued in exchange for such
Bearer Debt Security, but will be payable only to the holder of such coupon when
due in accordance with the terms of the Indenture.
In connection with its sale during the restricted period (as defined
below), no Bearer Debt Security (including a Debt Security in permanent global
form that is either a Bearer Debt Security or exchangeable for Bearer Debt
Securities) shall be mailed or otherwise delivered to any location in the United
States (as defined under "-- Limitations on Issuance of Bearer Debt Securities")
and a Bearer Debt Security may be delivered outside the United States in
definitive form in connection with its original issuance only if prior to
delivery the person entitled to receive such Bearer Debt Security furnishes
written certification, in the form required by the Indenture, to the effect that
such Bearer Debt Security is owned by: (a) a person (purchasing for its own
account) who is not a United States person (as defined under "-- Limitations on
Issuance of Bearer Debt Securities"); (b) a United States person who (i) is a
foreign branch of a United States financial institution purchasing for its own
account or for resale or (ii) acquired such Bearer Debt Security through the
foreign branch of a United States financial institution and who for purposes of
the certification holds such Bearer Debt Security through such financial
institution on the date of certification and, in either case, such United States
financial institution certifies to the Company or the distributor selling the
Bearer Debt Security within a reasonable time stating that it agrees to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended (the "Code"), and the regulations
thereunder; or (c) a United States or foreign financial institution for purposes
of resale within the "restricted period" as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7). A financial institution described in
clause (c) of the preceding sentence (whether or not also described in clauses
(a) and (b)) must certify that it has not acquired the Bearer Debt Security for
purpose of resale, directly or indirectly, to a United States person or to a
person within the United States or its possessions. In the case of a Bearer Debt
Security in permanent global form, such certification must be given in
connection with notation of a
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beneficial owner's interest therein in connection with the original issuance of
such Debt Security or upon exchange of a portion of a temporary global Debt
Security.
Debt Securities may be presented for exchange as provided above, and
Registered Debt Securities may be presented for registration or transfer (with
the form of transfer endorsed thereon duly executed), at the office or agency of
the Company maintained for such purposes and at any other office or agency
maintained for such purpose with respect to any series of Debt Securities and
referred to in the applicable Prospectus Supplement, without a service charge
and upon payment of any taxes and other governmental charges as described in the
Indenture. Such transfer or exchange will be effected upon the Company or its
agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request.
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days prior to the
selection of Debt Securities of that series for redemption and ending on the
close of business on (a) if Debt Securities of the series are issued only as
Registered Debt Securities, the day of mailing of the relevant notice of
redemption and (b) if Debt Securities of the series are issued as Bearer Debt
Securities, the day of the first publication of the relevant notice of
redemption except that, if Debt Securities of the series are also issued as
Registered Debt Securities and there is no publication, the day of mailing of
the relevant notice of redemption; (ii) register the transfer of or exchange any
Registered Debt Security, or portion thereof, called for redemption, except the
unredeemed portion of any Registered Debt Security being redeemed in part; or
(iii) exchange any Bearer Debt Security called for redemption, except to
exchange such Bearer Debt Security for a Registered Debt Security of that series
and like tenor which is simultaneously surrendered for redemption.
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and any premium) and interest on Bearer Debt Securities will be
payable, subject to any applicable laws and regulations, in the designated
currency or currency unit, at the offices of such Paying Agents ("Paying
Agents") outside the United States as the Company may designate from time to
time, at the option of the holder, by check or by transfer to an account
maintained by the payee with a bank located outside the United States; provided,
however, that the written certification described above under "-- Form,
Exchange, Registration, Conversion and Transfer" has been delivered prior the
first actual payment of interest. Unless otherwise indicated in the applicable
Prospectus Supplement, payment of interest on Bearer Debt Securities on any
Interest Payment Date will be made only against surrender to the Paying Agent of
the coupon relating to such Interest Payment Date. No payment with respect to
any Bearer Debt Security will be made at any office or agency of the Company in
the United States or by check mailed to any address in the United States or by
transfer to any account maintained with a bank located in the United States, nor
shall any payments be made in respect of Bearer Debt Securities upon
presentation to the Company or its designated Paying Agents within the United
States. Notwithstanding the foregoing, payments of principal of (and premium, if
any) and interest on Bearer Debt Securities denominated and payable in U.S.
dollars will be made at the office of the Company's Paying Agent in the United
States, if (but only if) payment of the full amount thereof 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.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and premium, if any) and interest on Registered Debt Securities
will be made in the designated currency or currency unit at the office of such
Paying Agent or Paying Agents as the Company may designate from time to time,
except that at the option of the Company payment of any interest may be made by
check mailed to the address of the person entitled thereto as such address shall
appear in the Security Register. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of any installment of interest on Registered Debt
Securities will be made to the person in whose name such Registered Debt
Security is registered at the close of business on the Regular Record Date for
such interest.
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Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee will be designated as a Paying Agent for
the Trustee for payments with respect to Debt Securities which are issuable
solely as Registered Debt Securities, and the Company will maintain a Paying
Agent outside the United States for payments with respect to Debt Securities
(subject to limitations described above in the case of Bearer Debt Securities)
which are issued solely as Bearer Debt Securities, or as both Registered Debt
Securities and Bearer Debt Securities. Any Paying Agents outside the United
States and any other Paying Agents in the United States initially designated by
the Company for the Debt Securities will be named in an applicable Prospectus
Supplement. The Company 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, except that, if Debt Securities of a series
are issued solely as Registered Debt Securities, the Company will be required to
maintain a Paying Agent in each Place of Payment for such series and, if Debt
Securities of a series are issued as Bearer Debt Securities, the Company will be
required to maintain (i) a Paying Agent in the United States for principal
payments with respect to any Registered Debt Securities of the series (and for
payments with respect to Bearer Debt Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Payment Agent in a
Place of Payment located outside the United States where Bearer Debt Securities
of such series and any coupons appertaining thereto may be presented and
surrendered for payment.
All monies paid by the Company to a Paying Agent for the payment of
principal of and any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company and the holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof.
Temporary Global Securities
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Debt Securities
will initially be represented by one or more temporary global Debt Securities,
without interest coupons, to be deposited with a common depository in London for
Euroclear System ("Euroclear") and Cedel Bank, societe anonyme ("CEDEL") for
credit to the designated accounts. On and after the date determined as provided
in any such temporary global Debt Security and described in the applicable
Prospectus Supplement, each such temporary global Debt Security will be
exchangeable for definitive Bearer Debt Securities, definitive Registered Debt
Securities or all or a portion of a permanent global security, or any
combination thereof, as specified in the applicable Prospectus Supplement, but,
unless otherwise specified in the applicable Prospectus Supplement, only upon
written certification in the form and to the effect described under "-- Form,
Exchange, Registration, Conversion and Transfer." No Bearer Debt Security
delivered in exchange for a portion of a temporary global Debt Security will be
mailed or otherwise delivered to any location in the United States in connection
with such exchange.
Unless otherwise specified in the applicable Prospectus Supplement,
interest in respect of any portion of a temporary global Debt Security payable
in respect of any Interest Payment Date occurring prior to the issuance of
definitive Debt Securities or a permanent global Debt Security will be paid to
each of Euroclear and CEDEL with respect to the portion of the temporary global
Debt Security held for its account. Each of Euroclear and CEDEL will undertake
in such circumstances to credit such interest received by it in respect of a
temporary global Debt Security to the respective accounts for which it holds
such temporary global Debt Security only upon receipt in each case of written
certification in the form and to the effect described above under "-- Form,
Exchange, Registration, Conversion and Transfer" as of the relevant Interest
Payment Date regarding the portion of such temporary global Debt Security on
which interest is to be so credited.
Permanent Global Securities
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent global Debt
Securities may exchange such interests for Debt Securities of such series and of
like tenor and principal amount in any authorized form and denomination. No
Bearer Debt Security delivered in
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exchange for a portion of a permanent global Debt Security shall be mailed or
otherwise delivered to any location in the United States in connection with such
exchange.
Book-Entry Debt Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary ("Depositary") or its nominee identified in the applicable
Prospectus Supplement. In such a case, one or more Global Securities will be
issued in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in registered form, a Global
Security may not be registered for transfer or exchange except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any nominee to a successor Depositary or a
nominee of such successor Depositary and except in the circumstances described
in the applicable Prospectus Supplement. (Sections 305 and 312)
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company expects
that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of such Global
Security, and the deposit of such Global Security with or on behalf of the
Depositary for such Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with such Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters or agents of such Debt Securities or by the Company, if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interest in such Global Security will be limited to participants or Persons that
may hold interest through participants. Ownership of beneficial interests by
participants in such Global Security will be shown on, and the transfer of that
ownership interest will be effected only through, records maintained by the
Depositary or its nominee for such Global Security. Ownership of beneficial
interests in such Global Security by Persons that hold through participants will
be shown on, and the transfer of that ownership interest within such participant
will be effected only through, records maintained by such participant. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of such securities in certificated form. The foregoing
limitations and such laws may impair the ability to transfer beneficial
interests in such Global Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or holder of the Securities
represented by such Global Security for all purposes under the applicable
Indenture. Unless otherwise specified in the applicable Prospectus Supplement,
owners of beneficial interests in such Global Security will not be entitled to
have Debt Securities of the series represented by such Global Security
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in certificated form and will not be
considered the holders thereof for any purposes under the applicable Indenture.
(Sections 305 and 312) Accordingly, each Person owning a beneficial interest in
such Global Security must rely on the procedures of the Depositary and, if such
Person is not a participant, on the procedures of the participant through which
such Person owns its interest, to exercise any rights of a holder under the
applicable Indenture. The Company understands that under existing industry
practices, if the Company requests any action of holders or an owner of a
beneficial interest in such Global Security desires to give any notice or take
any action a holder is entitled to give or take under an Indenture, the
Depositary would authorize the participants to give such notice or take such
action, and participants would authorize beneficial owners owning through such
participants to give such notice or take such action or would otherwise act upon
the instructions of beneficial owners owning through them.
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Principal of and any premium and interest on a Global Security will be
payable in the manner described in the applicable Prospectus Supplement.
Limitations on Issuance of Bearer Debt Securities
In compliance with United States Federal tax laws and regulations, Bearer
Debt Securities (including securities in permanent global form that are either
Bearer Debt Securities or exchangeable for Bearer Debt Securities) will not be
offered or sold during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (generally, the first 40
days after the closing date, and, with respect to unsold allotments, until sold)
within the United States or to United States persons (each as defined below)
other than to an office located outside the United States of a United States
financial institution (as defined in Section 1.165-12(c)(1)(v) of the United
States Treasury Regulations), purchasing for its own account or for resale or
for the account of certain customers, that provides a certificate stating that
it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Code and the United States Treasury Regulations thereunder, or to certain
other persons described in Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United
States Treasury Regulations. Moreover, such Bearer Debt Securities will not be
delivered in connection with their sale during the restricted period within the
United States. Any underwriters and dealers participating in the offering of
Bearer Debt Securities must covenant that they will not offer or sell during the
restricted period any Bearer Debt Securities within the United States or to
United States persons (other than the persons described above) or deliver in
connection with the sale of Bearer Debt Securities during the restricted period
any Bearer Debt Securities within the United States and that they have in effect
procedures reasonably designed to ensure that their employees and agents who are
directly engaged in selling the Bearer Debt Securities are aware of the
restrictions described above. No Bearer Debt Security (other than a temporary
global Bearer Debt Security) will be delivered in connection with its original
issuance nor will interest be paid on any Bearer Debt Security until receipt by
the Company of the written certification described above under "-- Form,
Exchange, Registration, Conversion and Transfer." Each Bearer Debt Security,
other than temporary global Bearer Debt Security, will bear a legend to the
following effect: "Any United States person who holds this obligation will be
subject to limitations under the United States Federal income tax laws,
including the limitations provided in Section 165(j) and 1287(a) of the Internal
Revenue Code."
As used herein, "United States person" means any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States and any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source, and "United States" means the United States of America (including the
states and the District of Columbia) and its possessions.
Defaults and Remedies
The following are Events of Default under the Indentures with respect to
Debt Securities of any series: (i) failure to pay principal or premium, if any,
on any Debt Security of that series when due; (ii) failure to pay any interest
due on any Debt Security of that series for 30 days; (iii) failure to make any
sinking fund payment, when due, in respect of any Debt Security of that series;
(iv) failure by the Company for 60 days after written notice to it to comply
with any of its other covenants in such respective Indenture; (v) default by the
Company or any Restricted Subsidiary (as defined herein) under any instrument or
other evidence of indebtedness of the Company or any Restricted Subsidiary for
money borrowed, or any guarantee of payment by the Company or any Restricted
Subsidiary for money borrowed, in an amount in excess of five percent of
Consolidated Net Tangible Assets (as defined herein), unless such default has
been cured or waived; (vi) certain events of bankruptcy, insolvency or
reorganization relative to the Company or any Restricted Subsidiary and (vii)
any other Events of Default provided with respect to Debt Securities of that
series. (Section 501)
If an Event of Default with respect to Outstanding Debt Securities of any
series occurs and is continuing, either the Trustee or holders of at least 25
percent in aggregate principal amount of the Debt Securities of that series then
outstanding under such Indenture may declare the principal amount of all Debt
Securities of that
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series and the interest accrued thereon to be due and payable immediately.
However, under certain conditions, such acceleration may be rescinded by holders
of a majority in principal amount of such Debt Securities of that series then
outstanding. (Section 502)
Holders of the Debt Securities of any series may not enforce the applicable
Indenture except as provided in such Indenture and except that, subject to any
applicable subordination provisions, nothing shall prevent the holders of Debt
Securities of any series from enforcing payment of the principal of or premium,
if any, or interest on, or, if applicable, conversion of, their Debt Securities.
Each Trustee may refuse to enforce an applicable Indenture unless it receives
reasonable security or indemnity. Subject to certain limitations, holders of a
majority in principal amount of the Debt Securities of any series under an
applicable Indenture may direct the Trustee thereunder in its exercise of any
trust or power under such Indenture. (Sections 508, 512 and 514)
The Company will furnish the Trustees with an officers' certificate with
respect to compliance with the terms of the applicable Indenture. (Section 1005
of the Subordinated Indenture and Section 1006 of the Senior Indenture)
Modification
Modification and amendment of an Indenture may be effected by the Company
and the Trustee thereunder with the consent of the holders of a majority in
aggregate principal amount of the Debt Securities of each series affected
thereby then Outstanding; provided, however, that no such modification or
amendment may, without the consent of each holder affected thereby: (i) reduce
the rate or change the time or place for payment of principal or interest on any
Debt Security; (ii) reduce the principal of or rate of interest thereon, or the
premium, if any, payable upon the redemption of, or change the fixed maturity
of, any Debt Security; (iii) make any Debt Security payable in a currency other
than that stated in the Debt Security; (iv) impair the right to institute suit
for the enforcement of any payment on or with respect to any such Debt Security;
(v) make any change that adversely affects the right to convert any Debt
Security that is convertible at the option of the holder; (vi) in the case of
the Subordinated Indenture, modify the subordination provisions in a manner
adverse to holders of the Subordinated Debt Securities of any series or (vii)
reduce the amount of Debt Securities of any series whose holders must consent to
modification or amendment of or waiver of compliance with certain provisions of
the applicable Indenture. The Indentures also contain provisions permitting the
Company and the Trustees to effect certain minor modifications to the applicable
Indentures not adversely affecting the rights of holders of the Debt Securities
of any series in any material respect. (Sections 901 and 902)
Consolidation, Merger and Sale of Assets
The Company, without the consent of any holders of Debt Securities, may
consolidate or merge with or into any person, or convey, transfer, lease or
otherwise dispose of its assets substantially as an entirety to any person, and
any person may consolidate or merge with, or into, or transfer or lease its
assets substantially as an entirety to, the Company, provided that (i) the
person (if other than the Company) formed by such consolidation or into which
the Company is merged or which acquires or leases the assets of the Company
substantially as an entirety is organized and existing under the laws of the
United States, any state thereof or the District of Columbia, and assumes the
Company's obligations on the Debt Securities and under the respective
Indentures; (ii) after giving effect to such transaction, no Event of Default
(as herein defined) and no event that, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing and
(iii) certain other conditions are met. (Section 801)
Defeasance
Subject to compliance with certain conditions, the Company may discharge
its indebtedness and its obligations or certain of its obligations under the
applicable Indenture by depositing funds or obligations issued or guaranteed by
the United States of America (as further defined in the applicable Indenture,
the "U.S. Government Obligations") with the applicable Trustee.
16
<PAGE> 35
Defeasance and Discharge. The applicable Indenture will provide that the
Company will be discharged from any and all obligations in respect of Debt
Securities of such series (except for certain obligations relating to temporary
Debt Securities of such series and exchange of Debt Securities of such series,
registration of transfer or exchange of Debt Securities of such series,
replacement of stolen, lost or mutilated Debt Securities of such series,
maintenance of paying agencies to hold monies for payment in trust and payment
of additional amounts, if any, required in consequence of United States
withholding taxes imposed on payments to non-United States persons) upon the
deposit with the applicable Trustee, in trust, of money and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of and premium, if any, and each installment of
interest on, the Debt Securities of such series on the Stated Maturity of such
payments in accordance with the terms of the applicable Indenture and the Debt
Securities of such series. (Sections 1502 and 1504 of the Subordinated Indenture
and Sections 1302 and 1304 of the Senior Indenture) Such a trust may only be
established if, among other things, the Company has delivered to the applicable
Trustee an Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of the applicable 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 of Counsel shall confirm that, the holders of Debt
Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge, and
will be subject to Federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if such deposit, defeasance
and discharge had not occurred. (Section 1504 of the Subordinated Indenture and
Section 1304 of the Senior Indenture) In the event of any such defeasance and
discharge of Debt Securities of such series, holders of Debt Securities of such
series would be entitled to look only to such trust fund for payment of
principal of and any premium and interest on their Debt Securities until
Maturity.
Defeasance of Certain Obligations. The Indentures will provide that the
Company may omit to comply with certain restrictive covenants, including the
covenants described under "Provisions Applicable to the Senior
Indenture -- Certain Covenants of the Company" below, and any such omission
shall not be an Event of Default with respect to the Debt Securities of such
series, upon the deposit with the applicable Trustee, in trust, of money and/or
U.S. Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any), and each
installment of interest on, the Debt Securities of such series on the Stated
Maturity of such payments in accordance with the terms of the applicable
Indenture and the Debt Securities of such series. The obligations of the Company
under the applicable Indenture and the Debt Securities of such series other than
with respect to such covenants shall remain in full force and effect. (Sections
1503 and 1504 of the Subordinated Indenture and Sections 1303 and 1304 of the
Senior Indenture) Such a trust may be established only if, among other things,
the Company has delivered to the applicable Trustee an Opinion of Counsel to the
effect that the holders of the Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such deposit
and defeasance, and will be subject to Federal income tax on the same amounts
and in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred. (Section 1504 of the Subordinated
Indenture and Section 1304 of the Senior Indenture)
Although the amount of money and U.S. Government Obligations on deposit
with the applicable Trustee would be intended to be sufficient to pay amounts
due on the Debt Securities of such series at the time of their Stated Maturity,
in the event the Company exercises its option to omit compliance with the
covenants defeased with respect to the Debt Securities of such series as
described above and the Debt Securities of such series are declared due and
payable because of the occurrence of any Event of Default, such amount may not
be sufficient to pay amounts due on the Debt Securities of such series at the
time of the acceleration resulting from such Event of Default. The Company shall
in any event remain liable for such payments as provided in the applicable
Indenture.
17
<PAGE> 36
Governing Law
The Debt Securities and the Indentures provide that they are governed by
the laws of the State of New York, without regard to the principles of conflicts
of laws. (Section 112)
Concerning the Trustees
Each Indenture contains certain limitations on the rights of the Trustee
thereunder, should it become a creditor of the Company, to obtain payment of
claims in certain cases, or to realize on certain property received in respect
of any such claim as security or otherwise. (Section 613) Each Trustee will be
permitted to engage in other transactions with the Company; provided, however,
if it acquires any conflicting interest (as defined) and there exists a default
with respect to the Debt Securities of any series outstanding under the
applicable Indenture, it must eliminate such conflict or resign. (Section 608)
The holders of a majority in aggregate principal amount of Outstanding Debt
Securities under an Indenture will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy power available to
the Trustee under such Indenture, provided that such direction does not conflict
with any rule of law or with the applicable Indenture and would not involve the
Trustee in personal liability or be unduly prejudicial to holders not joining in
such action (as determined by the Trustee in good faith). (Section 512)
In case a default or an Event of Default under an Indenture shall occur and
be continuing and if it is known to the Trustee under such Indenture, such
Trustee shall mail to each holder of Debt Securities of such series notice of
the default or Event of Default within 90 days after it occurs. Except in the
case of a default or an Event of Default in payment of the principal of, or
premium, if any, or interest on, any Debt Security of any series, such Trustee
may withhold the notice if and so long as the Trustee in good faith determines
that withholding the notice is in the interest of the holders of Debt Securities
of such series under the respective Indenture. Subject to such provisions, when
a Trustee incurs expenses or renders services after an Event of Default, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law. (Section 602)
PROVISIONS APPLICABLE TO THE SENIOR INDENTURE
The Senior Debt Securities will rank pari passu with all other
unsubordinated and unsecured indebtedness of the Company and senior to the
Subordinated Debt Securities and all other subordinated debt of the Company.
Certain Covenants of the Company
If so indicated in the applicable Prospectus Supplement with respect to a
particular series of Senior Debt Securities, the Company will be subject to
either or both of the following covenants or such other covenants as are therein
indicated, if any.
Limitations on Liens. Neither the Company nor any Restricted Subsidiary (as
hereafter defined) may create or cause to be created, by issuance, assumption or
guarantee of any Debt (as hereafter defined) (including in connection with any
merger, consolidation or other transaction whether or not permitted under the
Senior Indenture), any Mortgage (as hereafter defined) on any Mineral Interest
(as hereafter defined) or on any shares of capital stock or debt of any
Restricted Subsidiary, whether owned at the date of the Senior Indenture or
thereafter acquired, unless the Company secures, or causes the Restricted
Subsidiary to secure, the Senior Debt Securities equally and ratably with (or
prior to) such secured Debt, except that the Company or a Restricted Subsidiary
may, without so securing the Senior Debt Securities, incur (i) Mortgages in
existence on the date of the applicable Indenture; (ii) Mortgages affecting
Mineral Interests, shares of capital stock or debt of an entity existing at the
time it becomes a subsidiary or at the time it is merged into or consolidated
with the Company or a subsidiary or on any shares of capital stock or debt of
any Restricted Subsidiary at the time its becomes a Restricted Subsidiary; (iii)
Mortgages on property existing at the time of acquisition of such property, or
Mortgages on any property acquired by the Company or any Restricted
18
<PAGE> 37
Subsidiary after the date of the applicable Indenture which are created or
assumed to secure the payment of all or any part of the purchase price of such
property or to secure any Debt incurred prior to, at the time of, or within 120
days after the acquisition of such property for the purpose of financing all or
any part of the purchase price thereof; (iv) Mortgages on property constructed
or improved after the date of the applicable Indenture by the Company or any
Restricted Subsidiary which are created or assumed to secure the payment of all
or any part of the cost of such construction or improvement, provided, however,
that any such Mortgage shall not apply to any property owned by the Company or
any Restricted Subsidiary prior to the date of the applicable Indenture; (v)
Mortgages on property of the Company or a Restricted Subsidiary to secure the
payment of all or any part of the costs incurred after the date of the
applicable Indenture of exploration, drilling, mining or development of such
property for the purposes of increasing the production and sale of oil, gas and
other minerals or any Debt incurred to provide funds for all or any such
purposes; (vi) Mortgages which secure only Debt of a Restricted Subsidiary owed
to the Company or to another Restricted Subsidiary; (vii) Mortgages in favor of
the United States or any state or governmental instrumentality thereof securing
payments pursuant to any contract or statute or to secure any indebtedness
incurred for the purpose of financing all or any part of the purchase price or
cost of constructing or improving the property subject thereto and (viii) any
extension, renewal or replacement, in whole or in part, of any of the Mortgages
referred to in the foregoing clauses (i) through (vii), inclusive, or of any
Debt secured thereby. (Section 1004)
The Company and any one or more Restricted Subsidiaries will be permitted
to issue, assume or guarantee Debt secured by Mortgages, which would otherwise
be subject to the foregoing restrictions, in an aggregate principal amount
which, together with the aggregate outstanding principal amount of all other
Debt of the Company and its Restricted Subsidiaries which would otherwise be
subject to the foregoing restrictions (not including the Debt permitted to be
secured under clauses (i) through (viii), inclusive, above) and all Attributable
Debt (as hereafter defined) in respect to Sale and Leaseback Transactions (as
hereafter defined) entered into pursuant to the provisions of clause (i)
described under "-- Limitations on Sale and Leaseback Transactions" below (not
including any such Sale and Leaseback Transactions permitted under clauses (i)
through (viii) above), does not at any time exceed ten percent of the
Consolidated Net Tangible Assets (as hereafter defined) of the Company and its
Restricted Subsidiaries.
Under the terms of the Senior Indenture, the sale or transfer of (i) oil,
gas or other minerals in place for a period of time only, or in an amount such
that the transferee will realize therefrom a specified amount of money (however
determined) or a specified amount of such oil, gas and other minerals or (ii)
any other interest in property of the character commonly referred to as a
"production payment," will not be deemed to create Debt secured by a Mortgage.
Limitations on Sale and Leaseback Transactions. The Senior Indenture
provides that neither the Company nor any Restricted Subsidiary will enter into
any Sale and Leaseback Transaction (as hereafter defined) with any person
(except the Company or a Restricted Subsidiary), unless: (i) the Company or such
Restricted Subsidiary would be entitled to incur such indebtedness in a
principal amount equal to the Attributable Debt with respect to such Sale and
Leaseback Transaction, secured by a Mortgage on the property subject to such
Sale and Leaseback Transaction pursuant to the provisions described under
"-- Limitations on Liens" above without equally and ratably securing the Senior
Debt Securities pursuant to such covenant; (ii) after the date on which the
Senior Debt Securities are originally issued and within a period commencing 180
days prior to the consummation of such Sale and Leaseback Transaction and ending
180 days after the consummation thereof, the Company or such Restricted
Subsidiary shall have expended for property used or to be used in the ordinary
course of business of the Company and the Restricted Subsidiaries (including
amounts expended for the acquisition, exploration, drilling and development
thereof, and for additions, alterations, repairs and improvements thereto) an
amount equal to all or a portion of the net proceeds of such Sale and Leaseback
Transaction and the Company shall have elected to designate such amount as a
credit against such Sale and Leaseback Transaction (with any amount not being so
designated to be applied in clause (iii) below) or (iii) the Company, during the
365-day period after the effective date of such Sale and Leaseback Transaction,
shall have applied to the voluntary defeasance or retirement of any Senior
Indebtedness (as hereafter defined) an amount equal to the greater of (a) the
net proceeds of the sale or transfer of the property leased in such Sale and
Leaseback Transaction and (b) the fair value, as
19
<PAGE> 38
determined by the Board of Directors of the Company, of such property at the
time of entering into such Sale and Leaseback Transaction (in either case
adjusted to reflect the remaining term of the lease and any amount expended by
the Company or any Restricted Subsidiary as set forth in clause (ii) above),
less an amount equal to the principal amount of Senior Indebtedness voluntarily
defeased or retired by the Company within such 365-day period and not designated
as a credit against any other Sale and Leaseback Transaction entered into by the
Company or any Restricted Subsidiary during such period. (Section 1005)
Certain Definitions. The Senior Indenture will contain definitions of
certain terms used in such Indenture, including the following:
"Attributable Debt" means, when used with respect to any Sale and Leaseback
Transaction, as at the time of determination, the present value (discounted at a
rate equal to the Company's then current weighted average cost of funds for
borrowed money as at the time of determination, compounded on a semiannual
basis) of the total obligations of the lessee for rental payments during the
remaining term of the lease included in the Sale and Leaseback Transaction
(including any period for which such lease has been extended).
"Consolidated Net Tangible Assets" means the total amount of assets
included in the consolidated balance sheet of the Company and its Restricted
Subsidiaries (less depreciation, depletion, valuation and other reserves) after
deducting: (i) all current liabilities; (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles; (iii) investments in and advances to Subsidiaries that are not
Restricted Subsidiaries and (iv) minority interests in the equity of Restricted
Subsidiaries.
"Debt" means any notes, bonds, debentures or other similar evidences of
indebtedness for borrowed money.
"Hydrocarbons" means oil, gas and other liquid or gaseous hydrocarbons.
"Mineral Interests" means leasehold and other interests of the Company or a
Restricted Subsidiary in or under oil, gas or other mineral fee interests,
overriding royalty and royalty interests and any other interest in Hydrocarbons
and any other interest in minerals in place wherever located and classified by
the Board of Directors of the Company as capable of producing Hydrocarbons by
the Company or a Restricted Subsidiary, except any such interest which in the
opinion of the Board of Directors of the Company is not of material importance
to the total business conducted by the Company and its Restricted Subsidiaries.
"Mortgage" means any mortgage, lien, security interest, pledge, charge or
other encumbrance.
"Restricted Subsidiary" means any subsidiary of the Company the assets of
which comprise in excess of 15 percent of total consolidated assets of the
Company and its consolidated subsidiaries as included in the latest audited
consolidated balance sheet contained in the latest annual report sent to the
Company's shareholders. As of December 31, 1995 (giving pro forma effect to the
EDC Acquisition), Samedan Oil Corporation and Energy Development Corporation
were the only subsidiaries of the Company that would qualify as Restricted
Subsidiaries.
"Sale and Leaseback Transaction" means any arrangement with any person
providing for the leasing to the Company or any Restricted Subsidiary, for a
period of more than three years, of any real or tangible personal property which
has been, or is to be, sold or transferred by the Company or such Restricted
Subsidiary to such person in contemplation of such leasing.
"Senior Indebtedness" means the principal of and premium, if any, and
unpaid interest on the following, whether outstanding at the date of the
applicable Indenture or thereafter incurred or created: (i) indebtedness of the
Company for money borrowed (including purchase money obligations) evidenced by
notes or other written obligations; (ii) indebtedness of the Company evidenced
by notes, debentures, bonds or other securities issued under the provisions of
an indenture or other similar instrument; (iii) obligations of the Company as
lessee under capitalized leases and under leases of property made as part of any
Sale and Leaseback Transaction; (iv) obligations of the Company in respect of
letters of credit issued for its account and swaps of interest rates (and other
interest rate hedging agreements) to which the Company is a party; (v)
indebtedness of others of any kinds described in the preceding clauses (i)
through (iv) assumed or
20
<PAGE> 39
guaranteed by the Company and (vi) renewals, extensions and refundings of, and
indebtedness and obligations of a successor person issued in exchange for or in
replacement of, indebtedness or obligations of the kind described in the
preceding clauses (i) through (v); provided, however, that the following will
not constitute Senior Indebtedness: (a) any indebtedness or obligation which by
its terms refers explicitly to the Subordinated Debt Securities or other
subordinated debt and states that such indebtedness and obligation shall not be
senior in right of payment thereto; (b) any indebtedness or obligation of the
Company in respect of the Subordinated Debt Securities or other subordinated
debt and (c) any indebtedness or obligation of the Company to a subsidiary.
PROVISIONS APPLICABLE TO THE SUBORDINATED INDENTURE
The Subordinated Debt Securities will rank junior to the Senior Debt
Securities and all other unsecured and unsubordinated indebtedness of the
Company and pari passu with all other subordinated debt of the Company.
Subordination
Payment of the principal of and premium, if any, and interest on the
Subordinated Debt Securities will be subordinated in right of payment, as set
forth in the Subordinated Indenture, to the prior payment in full of all Senior
Indebtedness of the Company when due in accordance with the terms thereof.
(Section 1401)
There are no restrictions on the creation of Senior Indebtedness (as
defined in the Senior Indenture) in the Subordinated Indenture.
By reason of such subordination, in the event of dissolution, insolvency,
bankruptcy or other similar proceeding, holders of Subordinated Debt Securities
may recover less, ratably, than holders of Senior Indebtedness and other general
creditors of the Company, and, upon any distribution of assets, the holders of
Subordinated Debt Securities will be required to pay over their share of such
distribution to the holders of Senior Indebtedness until such Senior
Indebtedness is paid in full. In addition, if any Subordinated Debt Securities
are declared due and payable prior to their stated maturity, or in the event of
any default in the payment of principal of or premium, if any, or interest on
any Senior Indebtedness beyond any applicable grace period, or in the event of
any default with respect to Senior Indebtedness that would permit acceleration
of the maturity thereof, or in the event a judicial proceeding is pending with
respect to any such Senior Indebtedness default, the holders of Senior
Indebtedness will be entitled to be paid in full before any payments may be made
to the holders of Subordinated Debt Securities. (Sections 1401, 1402 and 1403)
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through one or more underwriters
or dealers, and also may sell Debt Securities directly to other purchasers or
through agents or through a combination of any such methods of sale.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, or
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Debt Securities, underwriters or agents may
receive compensation from the Company or from purchasers of Debt Securities in
the form of discounts, concessions or commissions. Underwriters, dealers and
agents that participate in the distribution of the Debt Securities may be deemed
to be underwriters, and any discounts or commissions received by them from the
Company and any profit on the resale of the Debt Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Any such person who may be deemed to be an underwriter will be identified, and
any such compensation received from the Company will be described, in a
Prospectus Supplement delivered with this Prospectus.
21
<PAGE> 40
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against or contribution toward
certain liabilities, including liabilities under the Securities Act and to
reimbursement by the Company for certain expenses.
If so indicated in the Prospectus Supplement, the Company may issue Debt
Securities to or through underwriters, agents or dealers in connection with the
conversion or redemption of its outstanding securities.
All Debt Securities, when first issued, will have no established trading
market. Any underwriters or agents to or through whom such Debt Securities are
sold by the Company for public offering and sale may make a market in such Debt
Securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making at any time without notice. No assurance can
be given as to the liquidity of the trading market for any Debt Securities.
Certain of the underwriters, dealers or agents may engage in transactions
with and perform services for the Company in the ordinary course of business.
The specific terms and manner of sale of offered Debt Securities are set
forth or summarized in the Prospectus Supplement.
EXPERTS
The consolidated financial statements of Noble Affiliates, Inc.
incorporated by reference in this Prospectus, to the extent and for the periods
indicated in their report, have been audited by Arthur Andersen LLP, independent
public accountants, and are incorporated by reference herein in reliance upon
the authority of said firm as experts in accounting and auditing in giving said
reports. Reference is made to said report, which includes an explanatory
paragraph with respect to the adoption of Statement of Financial Accounting
Standards No. 121, "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of" as discussed in Note 9 to the consolidated
financial statements.
The consolidated financial statements incorporated into this Prospectus by
reference from EDC's report appearing in Form 8-K (Date of Event: July 31, 1996)
of Noble Affiliates Inc., as amended, as of December 31, 1995 and 1994, and for
each of the three years in the period ended December 31, 1995 have been audited
by Deloitte & Touche LLP, independent auditors, as stated in their report, which
is incorporated by reference, and have been so incorporated in reliance upon the
report of such firm given upon their authority as experts in accounting and
auditing.
Estimates of EDC's proved reserves as of July 1, 1996 prepared by Miller
and Lents, Ltd., independent petroleum consultants, are set forth in the
Company's Form 8-K (Date of Event: July 31, 1996), as amended, which is
incorporated by reference in this Prospectus. Such estimates are incorporated by
reference herein in reliance upon the authority of said firm as experts in
estimating proved reserves.
22
<PAGE> 41
NO PERSON IS AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN AS CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE ACCOMPANYING
PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE
RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE UNDERWRITERS OR ANY OF
THEIR RESPECTIVE AFFILIATES. THIS PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING
PROSPECTUS DO NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO
BUY, THE SENIOR NOTES IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS SUPPLEMENT NOR THE ACCOMPANYING PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS SUPPLEMENT OR THE
ACCOMPANYING PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
Disclosure Regarding Forward-Looking
Statements.......................... S-2
Oil and Gas Terminology............... S-2
Summary............................... S-3
Use of Proceeds....................... S-7
Ratio of Earnings to Fixed Charges.... S-7
Capitalization........................ S-8
Certain Terms of the Senior Notes..... S-8
Certain Federal Income Tax
Considerations...................... S-13
Underwriting.......................... S-16
Validity of the Senior Notes.......... S-17
PROSPECTUS
Available Information................. 2
Incorporation of Certain Documents by
Reference........................... 3
The Company........................... 4
Use of Proceeds....................... 7
Selected Financial Data............... 8
Description of Debt Securities........ 9
Plan of Distribution.................. 21
Experts............................... 22
</TABLE>
$350,000,000
NOBLE AFFILIATES, INC.
$250,000,000 %
SENIOR NOTES DUE 2027
$100,000,000 %
SENIOR NOTES DUE 2097
-------------------------------------------
PROSPECTUS SUPPLEMENT
-------------------------------------------
MORGAN STANLEY & CO.
INCORPORATED
UBS SECURITIES
CHASE SECURITIES INC.
APRIL , 1997
<PAGE> 42
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Except for the SEC registration fee, all expenses are estimated. All such
expenses will be paid by the Registrant.
<TABLE>
<S> <C>
SEC registration fee........................................ $174,243
Trustee's fees and expenses (including legal fees).......... 20,000
Accounting fees and expenses................................ 25,000
Legal fees and expenses..................................... 95,000
Printing expenses........................................... 50,000
Miscellaneous............................................... 15,757
--------
Total............................................. $380,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation. Under Section 145 of the General
Corporation Law of the State of Delaware, the Registrant has the power to
indemnify its directors and officers, subject to certain limitations.
Reference is made to Article VI of the Bylaws of the Registrant, which
Article is filed as part of Exhibit 3.2 hereto and provides for indemnification
of directors and officers of the Registrant under certain circumstances.
Pursuant to the General Corporation Law of the State of Delaware, the
Certificate of Incorporation of the Registrant, filed as Exhibit 3.1 hereto,
limits the personal liability of the directors of the Registrant to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
under certain circumstances.
The Registrant entered into an Indemnity Agreement with each of the
directors and bylaw officers of the Registrant as of March 1, 1996 which
provides certain protections to such persons against legal claims and related
expenses. The Indemnity Agreements are filed as Exhibit 10.18 to the
Registrant's Form 10-K for the year ended December 31, 1995.
The Registrant also maintains insurance to protect itself and its
directors, officers, employees and agents against expenses, liabilities and
losses incurred by such persons in connection with their service in the
foregoing capacities.
The foregoing summaries are necessarily subject to the complete text of the
statute, bylaw, agreement, certificate of incorporation and insurance policy
referred to above and are qualified in their entirety by reference thereto.
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
NUMBER EXHIBIT
------ -------
<C> <S>
1.1 -- Form of Underwriting Agreement (draft of March 27, 1997).
2.1* -- Stock Purchase Agreement dated as of July 1, 1996,
between Samedan Oil Corporation and Enterprise
Diversified Holdings Incorporated.
3.1* -- Certificate of Incorporation, as amended, of the
Registrant as currently in effect.
3.2* -- Composite copy of the Bylaws of the Registrant as
currently in effect.
4.1 -- Indenture relating to Senior Debt Securities dated as of
April 1, 1997 between the Registrant and U.S. Trust
Company of Texas, N.A., as Trustee.
</TABLE>
II-1
<PAGE> 43
<TABLE>
<CAPTION>
NUMBER EXHIBIT
------ -------
<C> <S>
4.2* -- Form of Indenture to be entered into relating to the
Subordinated Debt Securities.
4.3* -- Indenture dated as of October 14, 1993 between the
Registrant and U.S. Trust Company of Texas, N.A., as
Trustee, relating to the Registrant's 7 1/4% Notes Due
2023, including form of the Registrant's 7 1/4% Note Due
2023.
4.4* -- Credit Agreement dated as of July 31, 1996 among the
Registrant, as borrower, certain commercial lending
institutions which are or may become a party thereto, as
lenders.
4.5* -- First Amendment to Credit Agreement dated as of October
15, 1996 among the Registrant, as borrower, certain
commercial lending institutions which are or may become
parties thereto, as lenders, and Union Bank of
Switzerland, Houston Agency, as agent for the lenders.
4.6 -- First Indenture Supplement dated as of April , 1997
between the Registrant and U.S. Trust Company of Texas,
N.A., as Trustee, relating to the Registrant's
$250,000,000 % Notes Due 2027.
4.7 -- Second Indenture Supplement dated as of April , 1997
between the Registrant and U.S. Trust Company of Texas,
N.A., as Trustee, relating to the Registrant's
$100,000,000 % Notes Due 2097.
5.1 -- Opinion of Thompson & Knight, P.C.
12.1 -- Statement of Computation of Ratio of Earnings to Fixed
Charges.
23.1* -- Consent of Arthur Andersen LLP.
23.2* -- Consent of Deloitte & Touche LLP.
23.3 -- Consent of Thompson & Knight, P.C. (included in their
opinion filed as Exhibit 5.1).
23.4* -- Consent of Miller & Lents, Ltd.
24.1* -- Powers of Attorney Authorizing Signatures.
25.1 -- Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of
the trustee.
</TABLE>
- ---------------
* Previously filed.
ITEM 17. UNDERTAKINGS.
(a) Rule 415 offering.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(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 volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
II-2
<PAGE> 44
(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)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Filings incorporating subsequent Exchange Act documents by reference.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities 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.
(h) Acceleration of effectiveness.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(i) Rule 430A.
The undersigned Registrant hereby undertakes that:
(1) For purposes 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 Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) 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.
(j) Qualification of trust indenture under the Trust Indenture Act of 1939
for delayed offerings.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act of 1939, as amended, in accordance
with the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
II-3
<PAGE> 45
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post-Effective No. 1 to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Ardmore, State of Oklahoma, on the 27th day of March, 1997.
NOBLE AFFILIATES, INC.
By: /s/ ROBERT KELLEY
----------------------------------
Robert Kelley
Chairman of the Board,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Post-Effective Amendment No. 1 to the Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLES DATE
---------- ------ ----
<C> <S> <C>
/s/ ROBERT KELLEY Chairman of the Board, President, March 27, 1997
- ----------------------------------------------------- Chief Executive Officer and
Robert Kelley Director (Principal Executive
Officer)
/s/ WILLIAM D. DICKSON Vice President -- Finance and March 27, 1997
- ----------------------------------------------------- Treasurer (Principal Financial
William D. Dickson and Accounting Officer)
/s/ ALAN A. BAKER* Director
- -----------------------------------------------------
Alan A. Baker
/s/ MICHAEL A. CAWLEY* Director
- -----------------------------------------------------
Michael A. Cawley
/s/ EDWARD F. COX* Director
- -----------------------------------------------------
Edward F. Cox
/s/ JAMES C. DAY* Director
- -----------------------------------------------------
James C. Day
/s/ HAROLD F. KLEINMAN* Director
- -----------------------------------------------------
Harold F. Kleinman
/s/ GEORGE J. MCLEOD* Director
- -----------------------------------------------------
George J. McLeod
*By: /s/ WILLIAM D. DICKSON March 27, 1997
------------------------------------------------
William D. Dickson
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 46
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
NUMBER EXHIBIT
------ -------
<C> <S>
1.1 -- Form of Underwriting Agreement (draft of March 27, 1997).
2.1* -- Stock Purchase Agreement dated as of July 1, 1996,
between Samedan Oil Corporation and Enterprise
Diversified Holdings Incorporated.
3.1* -- Certificate of Incorporation, as amended, of the
Registrant as currently in effect.
3.2* -- Composite copy of the Bylaws of the Registrant as
currently in effect.
4.1 -- Indenture relating to Senior Debt Securities dated as of
April 1, 1997 between the Registrant and U.S. Trust
Company of Texas, N.A., as Trustee.
4.2* -- Form of Indenture to be entered into relating to the
Subordinated Debt Securities.
4.3* -- Indenture dated as of October 14, 1993 between the
Registrant and U.S. Trust Company of Texas, N.A., as
Trustee, relating to the Registrant's 7 1/4% Notes Due
2023, including form of the Registrant's 7 1/4% Note Due
2023.
4.4* -- Credit Agreement dated as of July 31, 1996 among the
Registrant, as borrower, certain commercial lending
institutions which are or may become a party thereto, as
lenders.
4.5* -- First Amendment to Credit Agreement dated as of October
15, 1996 among the Registrant, as borrower, certain
commercial lending institutions which are or may become
parties thereto, as lenders, and Union Bank of
Switzerland, Houston Agency, as agent for the lenders.
4.6 -- First Indenture Supplement dated as of April , 1997
between the Registrant and U.S. Trust Company of Texas,
N.A., as Trustee, relating to the Registrant's
$250,000,000 % Notes Due 2027.
4.7 -- Second Indenture Supplement dated as of April , 1997
between the Registrant and U.S. Trust Company of Texas,
N.A., as Trustee, relating to the Registrant's
$100,000,000 % Notes Due 2097.
5.1 -- Opinion of Thompson & Knight, P.C.
12.1 -- Statement of Computation of Ratio of Earnings to Fixed
Charges.
23.1* -- Consent of Arthur Andersen LLP.
23.2* -- Consent of Deloitte & Touche LLP.
23.3 -- Consent of Thompson & Knight, P.C. (included in their
opinion filed as Exhibit 5.1).
23.4* -- Consent of Miller & Lents, Ltd.
24.1* -- Powers of Attorney Authorizing Signatures.
25.1 -- Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended, on Form T-1 of
the trustee.
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
EXHIBIT 1.1
DRAFT OF MARCH 27, 1997
NOBLE AFFILIATES, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
April [ ], 1997
From time to time, NOBLE AFFILIATES, INC., a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating
to the Debt Securities and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Securities pursuant to Rule 424 under the Securities Act of 1933,
as amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms
"Basic Prospectus," "Prospectus" and "preliminary prospectus" shall include in
each case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission;
<PAGE> 2
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply,
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations of
the Commission thereunder and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use therein or (B) to that part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1) under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the
Trustee;
(c) The financial statements of the Company and its subsidiaries,
including the notes thereto, and the supporting schedules included or
incorporated by reference in the Registration Statement and Prospectus fairly
present the financial condition of the Company and its subsidiaries as of the
dates indicated and the results of operations and changes in financial position
for the periods therein specified, and have been prepared, in conformity with
generally accepted accounting principles consistently applied throughout the
periods involved (except as otherwise stated therein). Any pro forma financial
information included or incorporated by reference in the Registration Statement
and Prospectus has been prepared in accordance with the rules and regulations
of the Commission with respect to pro forma financial statements, fairly
presents the information shown therein and has been properly compiled on the
pro forma basis described therein; the assumptions used in the preparation of
such pro forma financial information are reasonable and the adjustments used
therein are appropriate to give effect to the transactions and events referred
to therein;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, or from any labor
dispute or court or governmental action, order or decree, that is material to
the Company and its subsidiaries taken as a whole (taking into account any
insurance proceeds that may have been received), otherwise than as set forth or
contemplated in the Prospectus (or indicated in the financial statements
included or incorporated by reference therein); and, since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any of its Common Stock other than regular
quarterly dividends;
(e) The Company and each of its subsidiaries has been duly
incorporated and is an existing corporation in good standing under the laws of
its jurisdiction of incorporation, has full
-2-
<PAGE> 3
power and authority (corporate and other) to conduct its business as described
in the Registration Statement and Prospectus and is duly qualified to do
business in each jurisdiction in which its ownership of real property or
interests therein or the conduct of its business requires such qualification
except where the failure to be so qualified can be remedied without material
cost to the Company or, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial position or
results of operations of the Company and its subsidiaries taken as a whole;
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable in accordance with
its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement will be entitled to the benefits of the
Indenture, and will be valid and binding obligations of the Company, in each
case enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability;
(h) Except as contemplated in the Prospectus subsequent to the
respective dates as of which information is given in the Registration Statement
and the Prospectus neither the Company nor any of its subsidiaries has incurred
any liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to the
Company and its subsidiaries taken as a whole, and there has not been any
material change, or any development which could reasonably be expected to
involve a prospective material change, on a consolidated basis, in the capital
stock, short-term debt or long-term debt of the Company and its subsidiaries,
or any material adverse change, or any development which could reasonably be
expected to involve a prospective material adverse change, in the condition
(financial or other), business, properties, net worth or results of operations
of the Company and its subsidiaries taken as a whole;
(i) Except as set forth in the Prospectus, there is not pending or,
to the knowledge of the Company, threatened any action, suit, claim,
investigation or proceeding to which the Company or any of its subsidiaries is
a party, before or by any court or governmental agency or body, that could
reasonably be expected to (i) result in any material adverse change in the
condition (financial or other), business, net worth or results of operations of
the Company and its subsidiaries taken as a whole, or (ii) materially and
adversely affect the consolidated properties or assets thereof;
(j) There are no contracts or documents of the Company or any of its
subsidiaries that are required to be filed as exhibits to the Registration
Statement or to any of the documents
-3-
<PAGE> 4
incorporated by reference therein by the Act or the Exchange Act or by the
rules and regulations of the Commission thereunder that have not been so filed;
(k) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and the
Offered Securities will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute, any agreement or
instrument to which the Company is a party or by which it is bound or to which
any of the property of the Company is subject, the Company's charter or
by-laws, or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its properties; no
consent, approval, authorization or order of, or filing with, any court or
governmental agency or body is required for the performance by the Company of
its obligations under this Agreement, the Indenture or the Offered Securities
except such as may be required under the Act or state securities laws;
(l) Each of the Company and its subsidiaries owns title (consistent
with customary practice in the oil and gas industry for the type and location
of the relevant properties and assets) to its material oil and gas properties,
free and clear of any encumbrances, except for liens for taxes or charges of
mechanics or materialmen not yet due or which are being challenged in good
faith, encumbrances under gas sales contracts, operating agreements,
unitization and pooling agreements and other similar agreements as are
customarily found in connection with comparable operations and title defects
that are, singly and in the aggregate, not material in amount and do not
interfere in any material respect with its use or enjoyment of such material
oil and gas properties;
(m) The Company and each of its subsidiaries carry, or are covered
by, insurance in such amounts and covering such risks as is customary for
companies engaged in similar businesses in similar industries;
(n) Except as described in the Prospectus, there has been no storage,
disposal, generation, manufacture, spill, discharge, refinement,
transportation, handling or treatment of toxic wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries (or to the
knowledge of the Company, any of its predecessors in interest) at, upon or from
any of the property now or previously owned or leased or under contract for
purchase by the Company or any of its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation
or remedial action which would not reasonably be expected to result in,
singularly or in the aggregate with all such violations and remedial actions,
any material adverse effect on the consolidated financial position,
shareholders' equity, results of operations or business of the Company and its
subsidiaries that has not heretofore been reflected in the Company's
consolidated financial statements; and the terms "hazardous wastes," "toxic
wastes" and "hazardous substances" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with respect
to environmental protection;
(o) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the
-4-
<PAGE> 5
Securities Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder;
(p) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended; and
(q) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or with
any person or affiliate located in Cuba.
2. TERMS OF PUBLIC OFFERING. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the Prospectus.
3. PAYMENT AND DELIVERY. Except as otherwise provided in this Section
4, payment for the Offered Securities shall be made by wire transfer payable to
the order of the Company in immediately available funds at the time and place
set forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Offered Securities
registered in such names and in such denominations as the Manager shall request
in writing not less than two full business days prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the Offered
Securities to the Underwriters duly paid.
4. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters shall be subject, in the discretion of the
Manager, to the condition that all representations and warranties of the
Company herein are, at and as of the date hereof and the Closing Date (as if
made on and as of such dates), true and correct, the condition that the Company
shall have performed all of its obligations hereunder theretofore to be
performed in all material respects, and the following additional conditions:
(a) The Prospectus in relation to the Offered Securities shall have
been filed with the Commission pursuant to Rule 424(b) within the applicable
time period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 6(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to the Manager's
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Underwriters such opinion or opinions, dated the Closing Date for such Offered
Securities, with respect to the incor poration of the Company, the Offered
Securities, the Registration Statement, the Prospectus and other related
matters as the Manager may reasonably request, and such counsel shall have
received
-5-
<PAGE> 6
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) Thompson & Knight, P.C., counsel for the Company, shall have
furnished to the Underwriters their written opinion, dated the Closing Date for
such Offered Securities, in form and substance satisfactory to the
Underwriters, to the effect that:
(i) The Company and each of Noble Gas Marketing, Inc., Noble
Trading, Inc., Samedan Oil Corporation and Energy Development
Corporation ("EDC") (each, a Material Subsidiary) has been duly
incorporated and is an existing corporation in good standing under
the laws of its jurisdiction of incorporation and has full corporate
power and authority to conduct its business as described in the
Registration Statement and Prospectus; and all of the outstanding
Offered Securities of capital stock of each Material Subsidiary have
been duly authorized and validly issued, are fully paid and
non-assessable and (except as otherwise stated in the Registration
Statement) are owned beneficially by the Company subject to no
security interest or other encumbrance or claim affecting
transferability or voting;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus and all of the issued Offered Securities of capital
stock of the Company have been duly authorized and validly issued,
are fully paid, non-assessable and not subject to any preemptive or
similar right;
(iii) The Registration Statement has become effective under the
Act; and to the best knowledge of such counsel no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission;
(iv) Each part of the Registration Statement, when such part
became effective, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission, complied
as to form in all material respects with the requirements of the Act
and the rules and regulations of the Commission thereunder; and the
documents incorporated by reference in the Registration Statement or
Prospectus or any amendment or supplement thereto, when they became
effective under the Act or were filed with the Commission under the
Exchange Act, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; it being understood that such counsel need express no
opinion as to the financial statements, schedules and other financial
data, included in any of the documents mentioned in this clause;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
-6-
<PAGE> 7
(vi) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding agreement of
the Company, enforceable in accordance with its terms except as (a)
the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally and (b) rights
of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vii) the Offered Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the
benefits of the Indenture, in each case enforceable in accordance
with their respective terms except as (a) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (b) rights of acceleration, if any,
and the availability of equitable remedies may be limited by
equitable principles of general applicability and the Offered
Securities and the Indenture conform to the descriptions thereof in
the Prospectus;
(viii) The issue and sale of the Offered Securities and the
performance by the Company of its obligations under this Agreement,
the Indenture and the Offered Securities will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, any statute, any material agreement or instrument
known to such counsel to which the Company is a party or by which it
is bound or to which any of the property of the Company is subject,
the Company's certificate of incorporation or by-laws, or any order,
rule or regulation known to such counsel to be applicable to the
Company or any of its subsidiaries of any court or governmental
agency or body having jurisdiction over the Company or any of its
properties; and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the consummation by the Company of the transactions contemplated by
this Agreement in connection with the issuance or sale of the Offered
Securities by the Company, except such as have been obtained under
the Act and such as may be required under state securities laws in
connection with the purchase and distribution of the Offered
Securities by the Underwriters;
(ix) the statements (A) in the Basic Prospectus under the
captions "Description of Debt Securities" and "Plan of Distribution,"
(B) in the Prospectus Supplement under the captions "Certain Terms of
the Senior Notes" or "Certain Terms of the Subordinated Notes," as
applicable, and "Underwriting," (C) in the Registration Statement
under Item 15, (D) in "Item 3 - Legal Proceedings" of the Company's
most recent annual report on Form 10-K incorporated by reference in
the Prospectus and (E) in "Item 1 - Legal Proceedings" of Part II of
the Company's quarterly reports on Form 10-Q, if any, filed since
such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect
-7-
<PAGE> 8
to such legal matters, documents and proceedings and fairly summarize
the matters referred to therein;
(x) such counsel does not know of any legal or governmental
proceedings required to be described in the Registration Statement or
the Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required;
(xi) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended; and
(xii) if an opinion is ascribed to such counsel in the
Prospectus under the caption "Taxation" (or other similarly titled
caption), such counsel is of such opinion;
The foregoing opinions may be limited to the General Corporation Law
of the State of Delaware, the laws of the State of Texas, the New Jersey
Business Corporation Act, the laws of the State of New York and applicable
federal law. In rendering the foregoing opinions, counsel may rely, to the
extent they deem such reliance proper, on the opinions (in form and substance
reasonably satisfactory to the Manager) of other counsel reasonably acceptable
to the Manager as to matters governed by the laws of jurisdictions other than
the United States, the State of Texas, and the General Corporation Law of the
State of Delaware, and as to matters of fact, upon certificates of officers of
the Company and of government officials. Copies of all such opinions and
certificates shall be furnished to counsel to the Manager on the date the
Registration Statement becomes effective and on the Closing Date.
Concurrently with the delivery of its opinion, Thompson & Knight,
P.C., shall advise the Manager in writing that, in the course of its
representation of the Company in connection with the preparation of the
Registration Statement and Prospectus, nothing has come to its attention that
gives it any reason to believe either that any part of the Registration
Statement, when such part became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus and any amendment or supplement thereto, as of its date or as of the
Closing Date, included an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no view as to the financial
statements, schedules and other financial data, included in any of the
documents mentioned in this paragraph.
(d) On the date of the Underwriting Agreement for the Offered
Securities and on the Closing Date for such Offered Securities, Arthur Andersen
LLP, the independent accountants of the Company who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, shall have furnished
to the Underwriters a letter, dated the effective date of the Registration
Statement or the date of the most recent report
-8-
<PAGE> 9
filed with the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is later
than such effective date, and a letter dated such Closing Date, respectively,
each in form and substance satisfactory to the Underwriters, to the effect that
(i) they are independent certified public accountants with respect to the
Company within the meaning of the Act and the rules and regulations of the
Commission thereunder; (ii) in their opinion, the financial statements audited
by them included or incorporated by reference in the Registration Statement and
Prospectus comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the related published rules
and regulations thereunder; (iii) nothing came to their attention as a result
of performing certain specified procedures that caused them to believe that any
unaudited pro forma consolidated condensed financial statements included or
incorporated by reference in the Registration Statement do not comply as to
form in all material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements; and (iv) as to such other matters relating to such financial
statements and financial information as you may reasonably request and in form
and substance satisfactory to you;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus (or indicated in the financial
statements included or incorporated by reference therein); and (ii) since the
respective dates as of which information is given in the Prospectus there shall
not have been any change on a consolidated basis in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), in the Manager's judgment, taking into
account the Manager's prior knowledge of the Company and the industry in which
the Company operates, so materially and adversely affects the business,
financial condition or results of operations of the Company and its
subsidiaries (taken as a whole) as to make it impracticable to complete the
public offering or the delivery of the Offered Securities on the terms and in
the manner contemplated in the Prospectus;
(f) On or after the date hereof there shall not have occurred any of
the following: (i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act; (ii) a
suspension or limitation in trading in securities generally on the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities; (iv) a
material adverse change in the condition, financial or otherwise, earnings,
business or prospects of the Company and its subsidiaries considered as a
whole, whether or not arising in the ordinary course of business; (v) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United
-9-
<PAGE> 10
States of a national emergency or war; or (vi) a substantial national or
international calamity or other occurrence of a material adverse change in
general economic, political or financial conditions in the United States, or
internationally having a material impact on such conditions in the United
States, if the effect of any such event specified in clause (iv), (v) or (vi) in
the Manager's judgment makes it impracticable to complete the public offering or
the delivery of the Offered Securities on the terms and in the manner
contemplated by the Prospectus; and
(g) On the Closing Date, the Company shall have furnished or caused
to be furnished to you a certificate or certificates, dated the Closing Date,
of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of the date of
such certificate or certificates, as to the performance in all material
respects by the Company of all of its obligations hereunder to be performed at
or prior to the time such certificate or certificates shall be furnished to
you, as to the matters set forth in subsections (a) and (f) of this Section and
as to such other matters as you may reasonably request.
5. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with
each Underwriter as follows:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Offered Securities in a form approved by the Underwriters and
to file such Prospectus pursuant to Rule 424(b) under the Act not later than
the Commission's close of business on the second business day following the
execution and delivery of the Underwriting Agreement relating to the applicable
Offered Securities or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the Registration
Statement or Prospectus after the date of the Underwriting Agreement relating
to such Offered Securities and prior to the Closing Date for such Offered
Securities which shall be disapproved by the Underwriters for such Offered
Securities promptly after reasonable notice thereof; to advise the Underwriters
promptly of any such amendment or supplement after such Closing Date and
furnish the Underwriters with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of such Offered Securities, and during
such same period to advise the Underwriters, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use
of any prospectus relating to the Offered Securities, of the suspension of the
qualification of such Offered Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the Offered
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
-10-
<PAGE> 11
(b) To furnish the Manager, without charge, two signed copies of the
Registration Statement (including exhibits thereto) and for delivery to each
other Underwriter a conformed copy of the Registration Statement (without
exhibits thereto) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated by reference therein
and any supplements and amendments thereto or to the Registration Statement as
the Manager may reasonably request;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Manager may from time to time
reasonably request, and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of any Offered Securities and if
at such time any event shall have occurred as a result of which the Prospectus
as then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act
or the Trust Indenture Act, to notify the Underwriters and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the Underwriters
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance;
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to maintain such qualification for as long as the
Manager shall reasonably request;
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a twelve
month period beginning on the first day of the first full fiscal quarter after
the date of this Agreement, which earning statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder. If such fiscal quarter is the last fiscal quarter
of the Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days after the close of
the period covered thereby;
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company or
warrants to purchase debt securities of the Company substantially similar to
the Offered Securities (other than (i) the Offered Securities and (ii)
commercial paper issued in the ordinary course of business), without the prior
written consent of the Manager; and
(g) To pay all expenses incident to the performance of its
obligations under this Agreement, including: (i) the preparation and filing of
the Registration Statement and the Prospectus and all amendments and
supplements thereto; (ii) the preparation, issuance and delivery of the
-11-
<PAGE> 12
Offered Securities; (iii) the fees and disbursements of the Company's counsel
and accountants and of the Trustee and its counsel; (iv) the qualification of
the Offered Securities under state securities or Blue Sky laws in accordance
with the provisions of Section 6(d), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky or Legal Investment Memoranda;
(v) the printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto and
of any preliminary prospectus and the Prospectus and any amendments or
supplements thereto; (vi) the printing and delivery to the Underwriters of
copies of any Blue Sky or Legal Investment Memoranda; (vii) any fees charged by
rating agencies for the rating of the Offered Securities; (viii) the filing
fees and expenses, if any, incurred with respect to any filing with the
National Association of Securities Dealers, Inc. made in connection with the
Offered Securities; and (ix) any expenses incurred by the Company in connection
with a "road show" presentation to potential investors and (vii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, any preliminary prospectus and any other prospectus
relating to the Offered Securities, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse you for any legal or
other expenses reasonably incurred by you in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, the Prospectus, any preliminary prospectus
and any other prospectus relating to the Offered Securities, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by you expressly for use in the Prospectus
as amended or supplemented relating to such Offered Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Prospectus, any preliminary
prospectus and any other prospectus relating to the Offered Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, the Prospectus and any other prospectus relating to the
Offered Securities, or any such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter expressly for use therein;
-12-
<PAGE> 13
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) To the extent the indemnification provided for in paragraph (a)
or (b) of this Section 6 is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering price
of the Offered Securities. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the respective principal amounts of Offered Securities they have purchased
hereunder, and not joint. The Company and each of the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) were determined by pro rata allocation or by
-13-
<PAGE> 14
any other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the Underwriters'
obligations under this Section 6 shall be in addition to any liability which
the Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
7. INDEMNITIES, AGREEMENTS, REPRESENTATIONS AND WARRANTIES TO
SURVIVE. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the Underwriters, as set forth in this
Agreement, or as set forth by the Company in certificates of officers of the
Company furnished to the Underwriters pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any Underwriter or any person
who controls any Underwriter, or the Company, or any officer or director or
controlling person of the Company, and shall survive delivery of and payment
for the Offered Securities.
8. DEFAULTING UNDERWRITERS. If, on the Closing Date, any one or more
of the Underwriters shall fail or refuse to purchase Underwriters' Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
amount of Underwriters' Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 8 by an amount in excess of one-ninth of
such amount of Underwriters' Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Underwriters' Securities and the aggregate amount
-14-
<PAGE> 15
of Underwriters' Securities with respect to which such default occurs is more
than one-tenth of the aggregate amount of Underwriters' Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Underwriters' Securities are not made within
36 hours after such default, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Company. In any such case
either the Manager or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
9. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
10. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
11. HEADINGS. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
-15-
<PAGE> 16
UNDERWRITING AGREEMENT
___________, 199_
NOBLE AFFILIATES, INC.
110 West Broadway
Ardmore, Oklahoma 73401
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
NOBLE AFFILIATES, INC., a Delaware corporation (the "Company"), proposes to
issue and sell [Currency and Principal Amount] aggregate initial offering price
of [Full title of Debt Securities] (the "Debt Securities"). (The Debt
Securities are also referred to herein as the "Offered Securities"). The Debt
Securities will be issued pursuant to the provisions of an Indenture dated as
of _______________, 199_ (the "Indenture") between the Company and [NAME OF
TRUSTEE], as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Debt Securities
set forth below opposite their names at a purchase price of ____% of the
principal amount of Debt Securities [, plus accrued interest, if any, from
[Date of Offered Securities] to the date of payment and delivery](1)
<TABLE>
<CAPTION>
Principal Amount of
Name Debt Securities
---- ---------------
<S> <C>
[Morgan Stanley & Co.
Incorporated]
UBS Securities LLC]
[Insert syndicate list]
Total ................
</TABLE>
- ----------------
(1) To be added only if the transaction does not close "flat" (i.e., when the
purchaser pays accrued interest on the debt security at closing). Unless
otherwise provided in the Debt Securities, accrued interest, if any, will
be computed on the basis of a 360-day year of twelve 30-day months.
-16-
<PAGE> 17
The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated ___________, 199_, and the Prospectus Supplement dated
____________, 199_, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)](2)
Form and Denomination:
[Other Terms:}
All provisions contained in the document entitled NOBLE AFFILIATES,
INC. Underwriting Agreement Standard Provisions (Debt Securities) dated April
__, 1997, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, and (ii) all references
in such document to a type of agreement that has not been entered into in
connection with the transactions contemplated hereby shall not be deemed to be
a part of this Agreement.
- ---------------
(2) To be added only if the transaction does not close flat.
-17-
<PAGE> 18
[SIGNATURE PAGE WHERE THERE ARE CO-LEAD MANAGERS]
Please confirm the Company's agreement by having an authorized
officer sign a copy of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY & CO. INCORPORATED]
[UBS SECURITIES LLC]
[Name of Other Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
By: [NAME OF ONE CO-LEAD MANAGER]
By:
------------------------------------
Name:
Title:
Accepted:
NOBLE AFFILIATES, INC.
By:
----------------------------
Name:
Title:
-18-
<PAGE> 19
SIGNATURE PAGE WHERE THERE IS A SOLE MANAGER]
Please confirm the Company's agreement by having an authorized
officer sign a copy of this Agreement in the space set forth below.
Very truly yours,
[NAME OF SOLE MANAGER]
Acting severally on behalf of itself
and the several Underwriters named herein
By:
------------------------------------
Name:
Title:
Accepted:
NOBLE AFFILIATES, INC.
By:
----------------------------
Name:
Title:
-19-
<PAGE> 1
EXHIBIT 4.1
NOBLE AFFILIATES, INC.
TO
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
====================
INDENTURE
Dated as of April 1, 1997
Senior Debt Securities
====================
<PAGE> 2
TIE-SHEET
Noble Affiliates, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939, as amended and
Indenture, dated as of April 1, 1997
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
Section 310(a)(1). . . . . . . . . . . . . . . . . . . 609
(a)(2). . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . 608, 610
(c) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 312(a) . . . . . . . . . . . . . . . . . . . 701, 702
(b) . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . 702
Section 313(a) . . . . . . . . . . . . . . . . . . 703
(b)(1). . . . . . . . . . . . . . . . . . . . . . . 703
(b)(2). . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . . . 704
(a)(4). . . . . . . . . . . . . . . . . . . . . . . 102, 1005
(b) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . . . . . . . . . . 1403
(d) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . . . 102, 1005
Section 315(a) . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . 601
</TABLE>
-i-
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<TABLE>
<S> <C>
(d) . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316(a) (last sentence) . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . 513
(a)(2). . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1). . . . . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . . 107
(b) . . . . . . . . . . . . . . . . . . . . . . . Various Sections
(c) . . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
____________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION . . . . . . . . . . . . . . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
Affiliate . . . . . . . . . . . . . . . . . . . . . . . 2
Attributable Debt . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request" or "Company Order . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . 4
Corporation . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . 4
Covenant Defeasance . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . 4
Defeasance . . . . . . . . . . . . . . . . . . . . . . 4
Defeasible Series . . . . . . . . . . . . . . . . . . . 4
Depositary . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . 4
Hydrocarbons . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . 5
Mineral Interests . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
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<TABLE>
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<S> <C> <C>
Person . . . . . . . . . . . . . . . . . . . . . . . . 6
Place of Payment . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . 6
Preferred Stock . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . . . . 7
Registered Security . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . 7
Sale and Leaseback Transaction . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . 7
Security . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register" and "Security Registrar . . . . . . 7
Senior Indebtedness . . . . . . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act . . . . . . . . . . . . . . . . . . 8
Vice President . . . . . . . . . . . . . . . . . . . . 8
Section 102. Compliance Certificates and Opinions . . . . . . . . . 8
Section 103. Form of Documents Delivered to Trustee . . . . . . . . 9
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . 10
Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . 12
Section 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . 13
Section 107. Conflict with Trust Indenture Act . . . . . . . . . . . 13
Section 108. Effect of Headings and Table of Contents . . . . . . . 14
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . 14
Section 110. Separability Clause . . . . . . . . . . . . . . . . . . 14
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . . . 14
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . . . 14
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . 14
Section 114. Rules by Trustee, Paying Agent and Registrar . . . . . 15
ARTICLE TWO SECURITY FORMS . . . . . . . . . . . . . . . . . . . . 15
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . . . 15
Section 202. Form of Face of Registered Security . . . . . . . . . . 16
Section 203. Form of Reverse of Security . . . . . . . . . . . . . . 17
Section 204. Form of Legend for Global Securities . . . . . . . . . 20
Section 205. Form of Trustee's Certificate of Authentication. . . . 21
Section 206. Form of Assignment . . . . . . . . . . . . . . . . . . 21
ARTICLE THREE THE SECURITIES . . . . . . . . . . . . . . . . . . . . 22
Section 301. Amount Unlimited; Issuable in Series. . . . . . . . . . 22
Section 302. Denominations . . . . . . . . . . . . . . . . . . . . . 24
Section 303. Execution, Authentication, Delivery and Dating . . . . 24
</TABLE>
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<TABLE>
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<S> <C> <C>
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . 26
Section 305. Registration, Registration of Transfer and Exchange . . 28
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . . 30
Section 307. Payment of Interest; Interest Rights Preserved . . . . 31
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . 33
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . 33
Section 310. Computation of Interest . . . . . . . . . . . . . . . . 34
Section 311. CUSIP Number. . . . . . . . . . . . . . . . . . . . . . 34
Section 312. Book-Entry Provisions for Global Security . . . . . . . 34
ARTICLE FOUR SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . 35
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . 35
Section 402. Application of Trust Money . . . . . . . . . . . . . . 36
Section 403. Reinstatement . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE FIVE REMEDIES . . . . . . . . . . . . . . . . . . . . . . . 37
Section 501. Events of Default . . . . . . . . . . . . . . . . . . . 37
Section 502. Acceleration of Maturity; Rescission and Annulment . . 38
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . 40
Section 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . 41
Section 506. Application of Money Collected . . . . . . . . . . . . 41
Section 507. Limitation on Suits . . . . . . . . . . . . . . . . . . 42
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . 42
Section 509. Restoration of Rights and Remedies . . . . . . . . . . 42
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . 43
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . 43
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . 43
Section 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 44
Section 514. Undertaking for Costs . . . . . . . . . . . . . . . . . 44
Section 515. Waiver of Usury, Stay or Extension Laws . . . . . . . . 44
ARTICLE SIX THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . 45
Section 601. Certain Duties and Responsibilities . . . . . . . . . . 45
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . 45
Section 603. Certain Rights of Trustee . . . . . . . . . . . . . . . 45
Section 604. Not Responsible for Recitals or Issuance of Securities. 46
Section 605. May Hold Securities . . . . . . . . . . . . . . . . . . 46
Section 606. Money Held in Trust . . . . . . . . . . . . . . . . . . 47
Section 607. Compensation and Reimbursement . . . . . . . . . . . . 47
Section 608. Disqualification; Conflicting Interests . . . . . . . . 47
Section 609. Corporate Trustee Required; Eligibility . . . . . . . . 48
</TABLE>
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<PAGE> 7
<TABLE>
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<S> <C> <C>
Section 610. Resignation and Removal; Appointment of Successor . . . 48
Section 611. Acceptance of Appointment by Successor . . . . . . . . 49
Section 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . 50
Section 613. Preferential Collection of Claims Against Company . . . 50
Section 614. Appointment of Authenticating Agent . . . . . . . . . . 50
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . 52
Section 701. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 702. Preservation of Information; Communications To Holders 52
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . 52
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . 53
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . 53
Section 801. Company May Consolidate, Etc., Only on Certain Terms . 53
Section 802. Successor Corporation Substituted . . . . . . . . . . . 54
ARTICLE NINE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . 54
Section 901. Supplemental Indentures Without Consent of Holders . . 54
Section 902. Supplemental Indentures With Consent of Holders . . . . 56
Section 903. Execution of Supplemental Indentures . . . . . . . . . 57
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . 57
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . 57
Section 906. Reference in Securities to Supplemental Indentures . . 57
ARTICLE TEN COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 58
Section 1001. Payment of Principal, Premium and Interest . . . . . . 58
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . 58
Section 1003. Money for Security Payments to Be Held in Trust . . . . 59
Section 1004. Limitation on Liens . . . . . . . . . . . . . . . . . . 60
Section 1005. Restrictions on Sales and Leasebacks. . . . . . . . . . 62
Section 1006. Statement by Officers as to Default . . . . . . . . . . 63
Section 1007. Waiver of Certain Covenants . . . . . . . . . . . . . . 63
ARTICLE ELEVEN REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . 64
Section 1101. Applicability of Article . . . . . . . . . . . . . . . 64
Section 1102. Election to Redeem; Notice to Trustee . . . . . . . . . 64
Section 1103. Selection by Trustee of Securities to Be Redeemed . . . 64
Section 1104. Notice of Redemption . . . . . . . . . . . . . . . . . 65
Section 1105. Deposit of Redemption Price . . . . . . . . . . . . . . 66
Section 1106. Securities Payable on Redemption Date . . . . . . . . . 66
Section 1107. Securities Redeemed in Part . . . . . . . . . . . . . . 67
</TABLE>
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<TABLE>
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<S> <C> <C>
Section 1108. Purchase of Securities . . . . . . . . . . . . . . . . 67
Section 1109. Effect of Notice of Redemption . . . . . . . . . . . . 67
ARTICLE TWELVE SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . 67
Section 1201. Applicability of Article . . . . . . . . . . . . . . . 67
Section 1202. Satisfaction of Sinking Fund Payments with Securities . 68
Section 1203. Redemption of Securities for Sinking Fund . . . . . . . 68
ARTICLE THIRTEEN DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . 68
Section 1301. Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . 68
Section 1302. Defeasance and Discharge . . . . . . . . . . . . . . . 69
Section 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . 69
Section 1304. Conditions to Defeasance or Covenant Defeasance . . . . 70
Section 1305. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions . . . . . 71
Section 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . 72
</TABLE>
-vii-
<PAGE> 9
INDENTURE, dated as of April 1, 1997, between NOBLE
AFFILIATES, INC., a corporation duly organized and validly existing under the
laws of the State of Delaware (the "Company"), having its principal office at
110 West Broadway, Ardmore, Oklahoma 73401, and U.S. TRUST COMPANY OF TEXAS,
N.A., a national banking association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act and the rules and regulations of the Commission promulgated
thereunder that are required to be part of this Indenture and, to the extent
applicable, shall be governed by such provisions.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(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;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or defined by
Commission rule under the Trust Indenture Act, 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;
(4) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
<PAGE> 10
(5) the words "herein", "hereof" 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.
Certain terms, used principally in Articles Six and Ten, are
defined in those Articles.
"Act," when used with respect to any holder, has the meaning
specified in Section 104.
"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 meanings
correlative to the foregoing.
"Attributable Debt" means, when used with respect to any Sale and
Leaseback Transaction, as at the time of determination, the present value
(discounted at a rate equal to the Company's then current weighted average cost
of funds for borrowed money as at the time of determination, compounded on a
semiannual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in the Sale and Leaseback
Transaction (including any period for which such lease has been extended).
"Authenticating Agent" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language
or an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of 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 Business Day.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer, including, without
limitation, unless the context otherwise indicates, a Security in temporary or
permanent global bearer form.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution 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, and delivered to the Trustee.
-2-
<PAGE> 11
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in New York, New
York or Dallas, Texas are authorized or obligated by law or executive order to
close.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"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, and in each case shall include any
other obligor upon the Securities.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total of all assets
included in a consolidated balance sheet of the Company and its Restricted
Subsidiaries, prepared in accordance with generally accepted accounting
principles (and as of a date not more than 90 days prior to the date as of
which Consolidated Net Tangible Assets are to be determined), less the sum of
the following items each as included in such balance sheet:
(i) all current liabilities;
(ii) all depreciation, depletion, valuation and other reserves;
(iii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles;
(iv) investments in and advances to Subsidiaries that are not
Restricted Subsidiaries; and
(v) minority interests in the equity of Restricted
Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee
at 2001 Ross Avenue, Suite 2700, Dallas, Texas 75201, at which its corporate
trust business shall be administered.
"Corporation" means a corporation, partnership, association,
company, joint-stock company or business trust.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Covenant Defeasance" has the meaning specified in Section 1303.
-3-
<PAGE> 12
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Defeasible Series" has the meaning specified in Section 1301.
"Depositary" means, with respect to the Securities of any series
issuable in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated in Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Global Security" means a Security that evidences all or part of
the Securities of any series and is authenticated and delivered to the
Depositary for such Securities or a nominee thereof. Global Securities may be
issued in either registered or bearer form and in either temporary or permanent
form. Permanent Global Securities will be issued in definitive form (the
"Permanent Global Security").
"Holder", when used with respect to any Security, means in the
case of a Registered Security the Person in whose name the Security is
registered in the Security Register and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer of
thereof.
"Hydrocarbons" means oil, gas and other liquid or gaseous
hydrocarbons.
"Indenture" means this instrument as originally executed or 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.
"interest," when used with respect to an Original Issue Discount
Security which by its term bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Mineral Interests" mean leasehold and other interests of the
Company or a Restricted Subsidiary in or under oil, gas or other mineral fee
interests, overriding royalty and
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royalty interests and any other interest in Hydrocarbons and any other interest
in minerals in place, wherever located, and classified by the Board of
Directors of the Company as capable of producing Hydrocarbons by the Company or
a Restricted Subsidiary, except any Mineral Interest which in the opinion of
the Board of Directors of the Company is not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries.
"Officers' Certificate" means a certificate signed by the
principal executive officer and the principal financial officer or principal
accounting officer, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited 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 in accordance with the
terms of this Indenture; 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;
(iii) Securities as to which Defeasance has been effective
pursuant to Section 1302; and
(iv) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof to such date pursuant to Section 502, (B) the principal amount
of a Security denominated
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in one or more foreign currencies or currency units shall be the U.S. dollar
equivalent, determined in the manner provided as contemplated by Section 301 on
the date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the U.S. dollar equivalent on
the date of original issuance of such Security of the amount determined as
provided in Clause (A) above) of such Security, and (C) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Permanent Global Securities" has the same definition as assigned
under the definition of "Global Security."
"Person" means any individual, Corporation or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of
any series, means the place or places where the principal of and any premium
and interest of the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt 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 mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Preferred Stock," as applied to the stock of any corporation,
shall mean stock ranking prior to the shares of any other class of stock of
such corporation as to the payment of dividends or the distribution of assets
on any voluntary or involuntary liquidation.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security in the form established
pursuant to Article Two which is registered in the Security Register.
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"Regular Record Date" for the interest payable on any Interest
Payment Date means the date specified for that purpose contemplated by Section
301.
"Responsible Officer," when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, the treasurer, the cashier, any trust officer or assistant trust
officer or the controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary the assets of which
comprise in excess of 15% of total consolidated assets of the Company and its
consolidated Subsidiaries as included in the latest audited consolidated
balance sheet contained in the latest annual report sent to the Company's
shareholders.
"Sale and Leaseback Transaction" means any arrangement with any
Person providing for the leasing by the Company or any Restricted Subsidiary,
for a period of more than three years, of any real or tangible personal
property which has been, or is to be, sold or transferred by the Company or
such Restricted Subsidiary to such Person in contemplation of such leasing.
"Securities" has the meaning set forth in the recitals of this
Indenture.
"Security" means any of the Securities.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of and premium, if any,
and unpaid interest on the following, whether outstanding at the date hereof or
thereafter incurred or created: (i) indebtedness of the Company for money
borrowed (including purchase money obligations) evidenced by notes or other
written obligations; (ii) indebtedness of the Company evidenced by notes,
debentures, bonds or other securities issued under the provisions of an
indenture or other similar instrument; (iii) obligations of the Company as
lessee under capitalized leases and under leases of property made as part of
any Sale and Leaseback Transaction; (iv) obligations of the Company in respect
of letters of credit issued for its account and swaps of interest rates (and
other interest rate hedging agreements) to which the Company is a party; (v)
indebtedness of others of any of the kinds described in the preceding clauses
(i) through (iv) assumed or guaranteed by the Company and (vi) renewals,
extensions and refundings of, and indebtedness and obligations of a successor
Person issued in exchange for or in replacement of, indebtedness or obligations
of the kind described in the preceding clauses (i) through (v); provided,
however, that the following shall not constitute Senior Indebtedness: (a) any
indebtedness or obligation which by its terms refers explicitly to subordinated
debt and states that such indebtedness and obligation shall not be senior in
right of payment thereto; (b) any
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indebtedness or obligation of the Company in respect of the Securities and (c)
any indebtedness or obligation of the Company to any Subsidiary.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a Corporation more than 50% of the outstanding
voting stock or other voting or managing ownership interest of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided, however, that in the event the Trust Indenture Act is
amended after such date, Trust Indenture Act means, to the extent required by
any such amendment, the Trust Indenture Act as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"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".
Section 102. Compliance Certificates and Opinions.
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 is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, where applicable in
conjunction with this Indenture, shall comply with the requirements set forth
in the Trust Indenture Act, including, but not necessarily limited to:
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(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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 a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or 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 the 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 respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or
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instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date 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, wherever
situated, if such certificate shall be deemed by 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 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 (i) another certificate
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person,
(iii) such Bearer Security is surrendered in exchange for a Registered Security
or (iv) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of 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, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) The Company may, in the circumstances permitted by the
Trust Indenture Act, set any day as the record date for the purpose of
determining the holders of Outstanding Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by holders of Securities of such series. With regard to any record date
set pursuant to this paragraph, the holders of Outstanding Securities of the
relevant series on such record date (or their duly appointed agents), and only
such Persons, shall be entitled to give or take the relevant
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action, whether or not such holders remain holders after such record date. With
regard to any action that may be given or taken hereunder only by holders of a
requisite principal amount of Outstanding Securities of any series (or their
duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which
no such action purported to be given or taken by any holder shall be effective
hereunder unless given or taken on or prior to such expiration date by holders
of the requisite principal amount of Outstanding Securities of such series on
such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more
occasions at its option, extend such date to any later date. Nothing in this
paragraph shall prevent any holder (or any duly appointed agent thereof) from
giving or taking, after any such expiration date, any action identical to, or,
at any time, contrary to or different from, the action or purported action to
which such expiration date relates, in which event the Company may set a record
date in respect thereof pursuant to this paragraph. Nothing in this paragraph
shall be construed to render ineffective any action taken at any time by the
holders (or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is so
taken. Notwithstanding the foregoing or the Trust Indenture Act, the Company
shall not set a record date for, and the provisions of this paragraph shall not
apply with respect to, any notice, declaration or direction referred to in the
next paragraph.
(g) Upon receipt by the Trustee from any holder of Securities
of a particular series of (i) any written notice of default or breach referred
to in Section 501(4) or 501(5) with respect to Securities of such series, if
such default or breach has occurred and is continuing and the Trustee shall not
have given such written notice to the Company, (ii) any declaration of
acceleration referred to in Section 502, if an Event of Default with respect to
Securities of such series has occurred and is continuing and the Trustee shall
not have given such a declaration to the Company, or (iii) any direction
referred to in Section 512 with respect to Securities of such series, if the
Trustee shall not have taken the action specified in such direction, then a
record date shall automatically and without any action by the Company or the
Trustee be set for determining the holders of Outstanding Securities of such
series entitled to join in such notice, declaration or direction, which record
date shall be the close of business on the tenth day following the day on which
the Trustee receives such notice, declaration or direction. Promptly after such
receipt by the Trustee, and in any case not later than the fifth day
thereafter, the Trustee shall notify the Company and the holders of Outstanding
Series of such series of any such record date so fixed. The holders of
Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
notice, declaration or direction, whether or not such holders remain holders
after such record date; provided that, unless such notice, declaration or
direction shall have become effective by virtue of holders of the requisite
principal amount of Outstanding Securities of such series on such record date
(or their duly appointed agents) having joined therein on or prior to the 90th
day after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be cancelled and of no
further effect. Nothing in this paragraph shall be construed to prevent a
holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration or direction contrary
to or different from, or, after the expiration of such period, identical to,
the notice, declaration or direction to which such record date relates, in
which event a new record date in respect thereof shall be set
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pursuant to this paragraph. Nothing in this paragraph shall be construed to
render ineffective any notice, declaration or direction of the type referred to
in this paragraph given at any time to the Trustee and the Company by holders
(or their duly appointed agents) of the requisite principal amount of
Outstanding Securities of the relevant series on the date such notice,
declaration or direction is so given.
(h) Without limiting the foregoing, a holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of holders 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 by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention:
Mr. John Stohlman, or
(2) the Company by the Trustee or by any holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) (i) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not received by the addressee.
Section 106. Notice to holders; Waiver.
Where this Indenture provides for notice to holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) (i) to holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each holder 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 (if any), prescribed for the giving of
such notice, and (ii) to holders of Bearer Securities if published in an
Authorized Newspaper in the City of New York and London or other capital city
in Western Europe and in such other city or cities as may be specified in such
Bearer Securities on a Business Day at least twice, the first such publication
to be not earlier than the earliest date (if any), and not later than the
latest date (if any), prescribed for the giving of such notice. 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
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of notice by holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon
such waiver. If the Company mails a notice or communication to the holders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent or co-
registrar. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
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 any
case in which 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 effect 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.
In case by reason of the suspension 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 made
with the approval of the Trustee for such Securities shall constitute
sufficient notice to such holders for every purpose hereunder. Neither the
failure to give notice by publication to holders of Bearer Securities as
provided above, not any defect in any notice so published, shall effect the
sufficiency of any notice to holder of Registered Securities given as provided
herein.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be. The provisions of the Trust Indenture Act that
impose duties on any Person (including provisions automatically deemed included
in this Indenture unless the Indenture provides that such provisions are
excluded) are a part of and govern this Indenture, whether or not physically
contained herein, shall be deemed retroactively to govern this Indenture, and
prospectively to govern this Indenture and shall be deemed retroactively to
amend and supersede inconsistent provisions in this Indenture. The foregoing
provisions of this Section shall not be deemed to effect the inclusion (by
retroactive amendment or otherwise) in the text of this Indenture of any of the
optional provisions contemplated by the Trust Indenture Act.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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Section 109. 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 110. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at
the Stated Maturity, provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date or Stated Maturity, as
the case may be.
Section 114. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting
of holders. The Registrar and Paying Agent may make reasonable rules for their
functions.
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ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons appertaining thereto and
the Trustee's certificates of authentication shall be in substantially the form
set forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities and coupons appertaining thereto, if any, as
evidenced by their execution of the Securities and coupons appertaining
thereto, if any. If temporary Securities of any series are issued in global
form as permitted by Section 304, the form thereof shall be established as
provided in the preceding sentence. If the form of Securities of any series and
coupons appertaining thereto, if any, is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global security) and coupons appertaining
thereto, if any.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons appertaining thereto attached.
The definitive Securities and coupons appertaining thereto, if
any, shall be printed, lithographed or engraved or produced by any combination
of these methods on steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Registered Security.
NOBLE AFFILIATES, INC.
[Description of Senior Debt Securities]
No. _________________ $______________
NOBLE AFFILIATES, INC., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _______________________________, or
registered assigns, the principal sum of ____________________________________
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<PAGE> 24
______________________________________ Dollars on _____________ __, ____, and to
pay interest thereon from _____________, ___________, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually on _____________ and _____________ in each year, commencing
______________, ______________, at the rate of ___% per annum, until the
principal hereof is paid or made available for payment. Interest on the
Securities shall be computed on the basis of a 360-day year consisting of twelve
30-day months. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the ____________ or ____________ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to holders of Securities not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture. Payment of the
principal of (and premium, if any) and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts. The Company, however, may pay principal and interest
by check payable in such money. At the option of the Company, payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place. The Indenture
includes limitations on the right of the holder to institute a proceeding,
judicial or otherwise, with respect to the Indenture, for the appointment of a
receiver or trustee, or for any other remedy under the Indenture.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
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<PAGE> 25
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
NOBLE AFFILIATES, INC.
By:___________________________
Attest:
______________________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of
the Company designated as its [Description of Senior Debt Securities] (herein
called the "Securities"), limited in aggregate principal amount up to
$_________ _______ (subject to an increase of up to $__________ aggregate
principal amount), issued and to be issued under an Indenture, dated as of April
1, 1997 (herein called the "Indenture"), between the Company and U.S. Trust
Company of Texas, N.A., as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Indebtedness and the holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
[If applicable, insert the following paragraph.]
The Securities are not otherwise subject to redemption prior to
maturity and no sinking fund is provided for the Securities.
[If applicable, insert the following paragraph.]
[The Securities are subject to redemption upon not less than 15
nor more than 60 days' notice by first-class mail, postage prepaid, at any time
on or after _____________ __, ____, as a whole or in part, at the election of
the Company, at the following Redemption Prices (expressed as percentages of
the principal amount): if redeemed during the 12 month period beginning
____________ of the years indicated,
Redemption Redemption
---------- ----------
Year Price Year Price
---- ----- ---- -----
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<PAGE> 26
and thereafter at a Redemption Price equal to 100 percent of the principal
amount, together in the case of any such redemption with accrued and unpaid
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
[If applicable, insert the following paragraph.]
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the holder hereof upon the cancellation hereof.
In an Event of Default, as defined in Section 501 of this
Indenture, shall occur and be continuing, the principal of all the Securities
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture contains provisions for defeasance at any time of
((A) the entire indebtedness of this Security or (B)) certain restrictive
covenants and Events of Default with respect to this Security, in each case
upon compliance with certain conditions set forth in the Indenture.
[If the Security is not an Original Issue Discount Security, insert the
following paragraph.]
If an Event of Default with respect to Securities of this Series
shall occur and be continuing, the principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture.
[If the Security is an Original Issue Discount Security, insert the
following paragraph.]
In an Event of Default with respect to Securities of this series
shall occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal [insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest all of the Company's obligations in respect of the payment of
the principal of and interest, if any, on the Securities of this series shall
terminate.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent
of the holders of at least a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the holders of specified percentages in aggregate principal amount
of the Securities at the time Outstanding, on behalf of the holders of all the
Securities, to waive compliance by the Company with certain
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<PAGE> 27
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the holder of this Security
shall be conclusive and binding upon such holder and upon all future holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
The Indenture provides that no holder of any Security may enforce
any remedy under the Indenture except in the case of failure of the Trustee to
act after notice of default and after request by the holders of 25 percent in
principal amount of the Outstanding Securities and the offer and, if requested,
provision to the Trustee of reasonable indemnity satisfactory to the Trustee;
provided, however, that such provision shall not prevent the holder hereof from
enforcing payment of the principal of or interest on this Security after the
same shall have become due.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar and duly executed
by the holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the holder surrendering
the same.
No service charge shall be made to the holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
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<PAGE> 28
This Security and the rights of the holder hereof shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of laws.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Date: Your Signature:
--------------------- ---------------------------
(Sign exactly as your name
appears on the other side of
this Security)
Your Social Security or
Tax Identification Number:
-----------------------------------------------------
Signature Guarantee:
-----------------------------------------------------------
Note: Signature(s) must be guaranteed by an eligible guarantor institution
meeting the requirements of the Trustee, which requirements will include
membership or participation in STAMP or such other "signature guarantee
program" as may be determined by the Trustee in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
Section 204. Form of Legend for Global Securities.
Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee thereof. This Security may not be transferred to, or registered
or exchanged for Securities registered in the name of, any Person other than
the Depositary or a nominee thereof and no such transfer may be registered,
except in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
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Section 205. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By
-----------------------------------
Authorized Signatory
Section 206. Form of Assignment.
ASSIGNMENT
For value received
-------------------------------------------------------------
hereby sell(s), assign(s) and transfer(s) unto
- -----------------------------------------------------------------, -------------
- -----------
[Please insert social security or other identifying number of
assignee], the within Security, hereby irrevocably constituting and appointing
- ----------------------------------------------- attorney to transfer the said
Security on the books of the Company, with full power of substitution in the
premises.
Date:
----------------------- --------------------------------------
Signature(s)
Note: The signature(s) to
this assignment must correspond with
the name as it appears upon the face
of the within Security in every
particular, without alteration, or
enlargement or any change whatever.
- ---------------------------------------
Signature Guarantee
Note: Signature(s) must be guaranteed by an eligible guarantor institution
meeting the requirements of the Trustee, which requirements will include
membership or participation in STAMP or such other "signature guarantee
program" as may be determined by the Trustee in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended.
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<PAGE> 30
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of any other
series);
(b) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, whether any Securities of the
series are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form or
otherwise, with or without coupons appertaining thereto and, if so, whether
beneficial owners of interests in any such permanent Global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 305, and
the Depositary for any Global Security or Securities;
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<PAGE> 31
(d) the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature and the extent to which, or the manner in which, any interest
payable on a temporary Global Security on any Interest Payment Date will be
paid if other than in the manner provided in Section 305;
(e) the date or dates on which the principal of the Securities
of the series is payable;
(f) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date for any interest payable on any Interest Payment
Date;
(g) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(h) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(i) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and 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;
(j) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities as of the series shall
be issuable;
(k) the currency, currencies or currency units in which
payments of the principal of and any premium and interest on any Securities of
the series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the currency of
the United States of America for purposes of the definition of "Outstanding" in
Section 101;
(l) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with reference to
an index, the manner in which such amounts shall be determined;
(m) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election is
made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(n) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(o) the applicability, nonapplicability or variation, of
Sections 1004 or 1005 with respect to the Securities of such Series;
(p) if applicable, that the Securities of the series shall be
subject to either or both of Defeasance or Covenant Defeasance as provided in
Article Thirteen;
(q) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary or Depositaries for such Global
Security or Global Securities and any circumstances other than those set forth
in Section 305 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a Person
other than the Depositary for such Global Security or a nominee thereof and in
which any such transfer may be registered; and
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<PAGE> 32
(r) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)). All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
the Board Resolution referred to above and (subject to Section 303) set forth,
or determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities shall be issuable in such denominations as shall
be specified as contemplated by Section 301. In the absence of any such
specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of the Chairman of the Board, President, Treasurer or any Vice
President of the Company.
Securities and coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at the 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.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise; provided, however, that, in
connection with its sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security (other than a temporary
Global Security in bearer form delivered as provided in Section 305) may be
delivered outside the United States in connection with its original issuance
and only if the Person entitled to receive
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<PAGE> 33
such Bearer Security shall have furnished a certificate in the form set forth
in Exhibit A to this Indenture, or in such other form of certificate as shall
contain information then required by federal income tax laws and, if
applicable, federal securities laws, dated no earlier than the date of
certification (the "Certification Date"). If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 305, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a temporary
Global Security shall be deemed to be delivery in connection with sale, during
the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the
United States Treasury Regulations) of such beneficial owner's interest in such
permanent Global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled. If the form
or terms of the Securities of the series have been established in or pursuant
to one or more Board Resolutions as permitted by Sections 201 and 301, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to one or more Board Resolutions as permitted by Section 201, that
such form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to one or more Board Resolutions as permitted by Section 301, that
such terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when 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 valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
Notwithstanding the provisions of Section 301, if all Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupons 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, or the Security to which such coupon
appertains, a certificate of authentication substantially in
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<PAGE> 34
the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities 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 bearer form with one or
more coupons appertaining thereto or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities. In the case of any series issuable as Bearer Securities, such
temporary Securities may be in global form. A temporary Bearer Security shall
be delivered only in compliance with the conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series without charge to the holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. 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 and tenor; provided
however that no Bearer Security shall be issued in exchange for a temporary
Registered Security; and provided, further, that a definitive Bearer Security
(including interests in a permanent Global Security) shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303.
Any temporary global Bearer Security and any permanent global
Bearer Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary")
for the benefit of [Euroclear and CEDEL S.A.] for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Bearer Security of a series (the "Exchange Date"), the Company shall
deliver to the Trustee definitive Securities of that series in aggregate
principal amount equal to the principal amount of such temporary global Bearer
Security, executed by the Company. On or after the Exchange Date such temporary
global Bearer Security shall be surrendered by the Common Depositary to the
Trustee, as the
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<PAGE> 35
Company's agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities of that series without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Bearer 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 temporary global Bearer Security to be
exchanged; provided however, that unless otherwise specified in such temporary
global Bearer Security, no such definitive Securities shall be delivered
unless, upon such presentation by the Common Depositary, such temporary global
Bearer Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by [Euroclear] as to the portion of such temporary
global Bearer Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by [CEDEL
S.A.] as to the portion of such temporary global Bearer Security held for its
account then to be exchanged, each in the form set forth in Exhibit B to this
Indenture. The definitive Securities to be delivered in exchange for any such
temporary global Bearer Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and if any
combination thereof is so specified, as requested by the beneficial owner
thereof.
Unless otherwise specified in the temporary global Bearer
Security, the interest of a beneficial owner of Securities of a series in a
temporary global Bearer Security shall be exchanged on or after the Exchange
Date for definitive Securities (and where the form of the definitive Securities
is not specified by the holder for an interest in a permanent Global Security)
of the same series and of like tenor upon delivery by such beneficial owner to
[Euroclear or CEDEL S.A.], as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certification
Date, copies of which certificate shall be available from the offices of
[Euroclear and CEDEL S.A.], the Trustee, any Authenticating Agent appointed for
such series of Securities and each Paying Agent. Unless otherwise specified in
such temporary global Bearer Security, any exchange shall be made free of
charge to the beneficial owners of such temporary global Bearer Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the office of
[Euroclear or CEDEL S.A.]. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Bearer Security shall be
delivered only outside the United States.
All Outstanding temporary Securities of any series shall in all
respects entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by Section
301, interest payable on a temporary global Bearer Security on an Interest
Payment Date for Securities of such series shall be payable to [Euroclear and
CEDEL S.A.] on such Interest Payment Date upon delivery by [Euroclear and CEDEL
S.A.] to the Trustee of a certificate or certificates in the form set forth in
Exhibit B to this Indenture, for credit without further interest on or after
such Interest Payment Date to the respective accounts of the Persons who are
the beneficial owners of such temporary global Bearer Security on such Interest
Payment Date and who have each delivered to [Euroclear or CEDEL S.A.], as the
case may be, a certificate in the form set forth in Exhibit A to this
Indenture. Any interest so received by
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[Euroclear and CEDEL S.A.] and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in accordance with
Section 1003.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as herein
provided.
Upon surrender for registration of transfer of any Registered
Security at an office or agency of the Company, in a Place of Payment for that
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 any authorized denominations and of a like
aggregate principal amount.
At the option of the holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series, of any
authorized registered denominations and of a like aggregate principal amount,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the holder making the exchange is entitled to receive. A holder of
Registered Securities cannot have Bearer Securities issued in exchange for such
Registered Securities.
At the option of the holder of Bearer Securities of any series,
such Bearer Securities may be exchanged for Registered Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Bearer Securities to be exchanged at
any office or agency, in a Place of Payment for that 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
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 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 from the Company 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 located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor
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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 proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest, as the case
may be, will 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 will be payable only to the holder of
such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the holder thereof or his attorney duly authorized in writing.
No service charge shall be made to the holder for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906 or 1107 not
involving any transfer.
Neither the Company nor the Trustee nor any agent of either shall
be required (i) to issue, register the transfer of or exchange any Security
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities selected for redemption
under Section 1103 and ending at the close of business on (A) if Securities of
the series are issuable only as Registered Securities, the day of the mailing
of the relevant notice of redemption, and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption, except that if Securities of the series are also issuable
as Registered Securities and there is no such publication, the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Registered Security so selected for redemption in whole or
in part, except the unredeemed portion of any Registered Security being
redeemed in part or (iii) to exchange any Bearer Security so selected for
redemption, except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption.
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Notwithstanding any other provision in this Indenture, no
registered Global Security may be transferred to, or registered or exchanged
for Securities registered in the name of, any Person other than the Depositary
for such registered Global Security or any nominee thereof, and no such
transfer may be registered, unless (i) such Depositary (A) notifies the Company
that it is unwilling or unable to continue as Depositary for such registered
Global Security or (B) ceases to be a clearing agency registered under the
Exchange Act, (ii) the Company executes and delivers to the Trustee a Company
Order that such registered Global Security shall be so transferable,
registrable and exchangeable, and such transfers shall be registrable, (iii)
there shall have occurred and be continuing an Event of Default with respect to
the Securities evidenced by such registered Global Security or (iv) there shall
exist such other circumstances, if any, as have been specified for this purpose
as contemplated by Section 301. Notwithstanding any other provision in this
Indenture, a registered Global Security to which the restriction set forth in
the preceding sentence shall have ceased to apply may be transferred only to,
and may be registered and exchanged for Registered Securities registered only
in the name or names of, such Person or Persons as the Depositary for such
registered Global Security shall have directed and no transfer thereof other
than such a transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a registered Global Security to
which the restriction set forth in the first sentence of the preceding
paragraph shall apply, whether pursuant to this Section, Section 304, 306, 906
or 1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a registered Global Security.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon appertaining thereto 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 actual notice to the Company or the Trustee
that such Security or coupon has been acquired by a bona fide purchaser, the
Company shall execute and upon a Company Request the Trustee shall authenticate
and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or stolen), a new
Security of the same series and of like tenor and 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.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new
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Security, pay such Security; provided, however, that the principal of and any
premium in interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, of the destroyed, lost or stolen
coupons shall be at any time enforceable by anyone, and 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 that
series duly issued hereunder.
The provisions of this Section are 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; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Registered Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest. Interest on any Bearer Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment date shall be paid to the bearer of the applicable coupon appertaining
to such Bearer Security. Unless otherwise provided with respect to the
Securities of any series, payment of interest may be made at the option of the
Company (i) in the case of Registered Securities, by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register, or (ii) in the case of Bearer Securities, except as
otherwise provided in Section 1002, upon presentation and surrender of the
appropriate coupon appertaining thereto at an office or agency of the Company
in a Place of Payment located outside the United States or by transfer to an
account maintained by the payee with a bank located outside the United States.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the holder
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:
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(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities (or
their respective Predecessor Securities) are 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 each 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 prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons 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 each holder at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the Securities 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 manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of
receiving payment of and principal of (and premium, if any) and (subject to
Section 307) interest on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security 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.
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Section 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Registered Securities and matured coupons so delivered shall be
promptly cancelled by the Trustee. All Bearer Securities and unmatured coupons
so delivered shall be held by the Trustee and, upon instruction by a Company
Order, shall be cancelled or held for reissuance. Bearer Securities and
unmatured coupons held for reissuance may be reissued only in replacement of
mutilated, lost, stolen or destroyed Bearer Securities of the same series and
like tender or the related coupons pursuant to Section 306. All Bearer
Securities and unmatured coupons held by the Trustee pending such cancellation
of reissuance shall be deemed to be delivered to the Trustee for all purposes
of this Indenture and the Securities. 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 promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order. The Company shall, within
120 days of a request therefor by the Trustee, deliver a Company Order
directing the destruction of cancelled Securities. If the Company fails to
respond to such a request within such 120-day period, the Trustee may destroy
any or all cancelled Securities, in which case the Trustee shall deliver a
certificate as to such destruction to the Company.
In the case of any temporary global Bearer Security, which shall
be disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 304 hereof,
substantially in the form of Exhibit B hereto, to be given by [Euroclear or
CEDEL S.A.], have been duly presented to the Trustee for such Securities by
[Euroclear or CEDEL S.A.], as the case may be. Permanent Global Securities
shall not be disposed of until exchanged in full for definitive Securities or
until payment thereon is made in full.
Section 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
Section 311. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number
and, if so, the Trustee shall use the CUSIP number in any notices to holders as
a convenience to such holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company
shall promptly notify the Trustee of any change in the CUSIP number.
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Section 312. Book-Entry Provisions for Global Security.
(a) The Global Security initially shall be registered in the
name of the Depositary for such Global Security or the nominee of such
Depositary and be delivered to the Trustee as custodian for such Depositary.
(b) Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a holder of any
Security.
(c) Transfers of the Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in
the Global Security may be transferred in accordance with the rules and
procedures of the Depositary. As soon as practicable Permanent Global
Securities shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Global Security if, and only if, either (1) the
Depositary notifies the Company that it is unwilling or unable to continue as
depositary for the Global Security and a successor depositary is not appointed
by the Company within 90 days of such notice, or (2) an Event of Default has
occurred and is continuing and the Registrar has received a request from the
Depositary to issue Permanent Global Securities in lieu of all or a portion of
the Global Security (in which case the Company shall deliver Permanent Global
Securities within 30 days of such request).
(d) In connection with the transfer of the entire Global
Security to beneficial owners pursuant to this Section, the Global Security
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner or Agent Member identified by the Depositary, in exchange for
its beneficial interest in the Global Security, an equal aggregate principal
amount of Permanent Global Securities of authorized denominations.
(e) The beneficial owners of the Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a
holder is entitled to take under this Indenture or the Securities.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities of a series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto
(other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and coupons
which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (iii) coupons
appertaining to Bearer Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 1106, (iv) Securities which
have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306 and (v) Securities and coupons
for whose payment money 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 such Securities 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) 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
irrevocably deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Securities and coupons appertaining thereto, if any, not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest
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to the date of such deposit (in the case of Securities and coupons
appertaining thereto, if any, which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities,
the coupons (if any) 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
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee.
Section 403. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
deposited with respect to Securities of any series in accordance with Section
401 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture
with respect to the Securities of such series and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 401 until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 401; provided, however, that if
the Company has made any payment of principal of (and premium, if any) or
interest on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein, 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):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days;
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity;
(3) default in the payment of any sinking payment, when and
as due by the terms of a Security of that series;
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty, a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
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 10% in principal
amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder;
(5) default under any instrument or other evidence of
indebtedness for money borrowed, or under any guarantee of payment by
the Company or any Restricted Subsidiary of indebtedness for money
borrowed, whether such indebtedness or guarantee now exists or shall
hereafter be created, which default extends beyond any period of grace
provided with respect thereto and which default relates to (a) the
obligation to pay the principal of or interest on any such indebtedness
or guarantee or (b) an obligation other than the obligation to pay the
principal of or interest on any such indebtedness, if the effect of such
event of default is to cause the acceleration of a principal amount of
such indebtedness; provided, however, that no default under this Section
501(5) shall exist if all such defaults do not relate to such
indebtedness or such guarantees with an aggregate principal amount in
excess of 5% of Consolidated Net Tangible Assets; and provided further,
that if any such event of default has been cured or waived and any
acceleration with respect thereto rescinded, or if such other
indebtedness has been repaid or otherwise discharged, the Event of
Default arising under this Section 501(5) by virtue thereof shall not be
deemed to have occurred and any acceleration under this Section
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501(5) pursuant to Section 502 hereof shall ipso facto be rescinded so
long as such rescission does not conflict with any judgment or decree;
(6) the entry by a court having jurisdiction in the premises
of (a) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or (b) a decree or order adjudging the Company or any
Restricted Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Restricted Subsidiary
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Restricted Subsidiary or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(7) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar
law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for
relief in respect of the Company or any Restricted Subsidiary in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any
Restricted Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due, or the taking of corporate action by the Company or
any Restricted Subsidiary in furtherance of any such action.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then and in every such case
the Trustee or the holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount (or, if
any of the Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified in
the terms thereof) of all the Securities of that series and the interest
accrued thereon to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by holders) and upon any such
declaration such principal and interest shall become immediately due and
payable.
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At any time after such a declaration of acceleration with respect
to Securities of any series has been made 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 a majority in principal amount of the
Outstanding Securities of that series, 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
sufficient to pay
(A) all overdue interest on all Securities and coupons
appertaining thereto, if any, of that series,
(B) the principal of (and premium, if any, on) any
Securities and coupons appertaining thereto, if any, of that
series, which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Securities and coupons appertaining thereto, if any, of that
series, and
(D) all sums paid or advanced or liabilities incurred
by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents
and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Securities and coupons appertaining thereto, if any, of
that series, which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security and coupons appertaining thereto, if any, when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal (and premium, if any) and
interest, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount 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.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, 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 and any
related coupons of such series by such appropriate judicial proceedings as the
Trustee, being advised by counsel, 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 in aid of the exercise of any power granted
herein, 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 of 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 overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect
of the Securities 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 and counsel) and
of the holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the holders,
to pay to the Trustee any amount due 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 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or 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 of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Securities or
coupons in respect of which such judgment has been recovered. In any such
proceeding brought by the Trustee, the Trustee shall be deemed to represent all
holders without the necessity of joining any holders as parties.
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 the case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities or coupons
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all costs and expenses in connection
with the collection of such money and to the payment of all amounts due
the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities and
coupons 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 amounts due and payable on such Securities and coupons
for principal (and premium, if any) and interest, respectively.
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Section 507. Limitation on Suits.
No holder of any Security of any 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 has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
that series;
(2) the holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such holder or holders offer and, if requested, provide to
the Trustee indemnity satisfactory to the Trustee 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 and, if requested, provision 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 that
series;
it being understood and intended that no one or more holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other holders,
or to obtain or to seek to obtain priority or preference over any other holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the holders.
Section 508. Unconditional Right of holders to Receive Principal, Premium and
Interest.
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 (and premium, if any) and
(subject to Section 307) interest on such Security or such coupon on the
respective Stated Maturities expressed in such Security or such coupon (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the holders
shall be restored severally and respectively to their former positions
hereunder and
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thereafter all rights and remedies of the Trustee and the Holders 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 the holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 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 the holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the holders, as the case may be.
Section 512. Control by Holders.
The holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct in writing
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 that series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall determine that the action so directed would
involve the Trustee in personal liability or would be unduly prejudicial
to holders not joining in such direction.
This Section 512 shall be in lieu of Section 316(a)(1)(A) of the
Trust Indenture Act and said Section 316(a)(1)(A) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
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Section 513. Waiver of Past Defaults.
The holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of any series may on behalf of the holders
of all the Securities of such series waive any past default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, 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. This
Section 513 shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act
and said Section 316(a)(1)(B) is hereby expressly excluded from this Indenture,
as permitted by the Trust Indenture Act.
Section 514. 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, suffered 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 claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, 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 the Outstanding Securities of any series, or to
any suit instituted by any holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security of that series on
or after the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date). This Section 514
shall be in lieu of Section 315(e) of the Trust Indenture Act and said Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
Trust Indenture Act.
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any usury, 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 (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any
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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.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
The Trustee shall give the holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4), no such notice to holders shall be given until at least 30 days after
the occurrence thereof. 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.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any
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action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the holders pursuant to this Indenture,
unless such holders shall have offered to the Trustee security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness 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 the books,
records and premises of the Company personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture, or of any supplemental indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
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Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation 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);
(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 its negligence or bad faith; and
(3) to indemnify the Trustee and its agents, employees,
officers, directors and stockholders for, and to hold them harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(6) or (7) occurs, the expenses
(including the reasonable charges and expenses of its agents, attorneys and
counsel) and the compensation for services shall be preferred over the status
of the holders in any reorganization or similar proceeding and are intended to
constitute expenses of administration under any reorganization, bankruptcy or
similar law. The Company's payment obligations pursuant to this Section 607
shall survive the discharge of this Indenture.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
conflicting interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
In the event that such Trustee fails to comply with the provisions of this
Section 608, Trustee shall, within ten days after failing to comply with this
Section 608, transmit
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notice of such failure to the Indenture Security holders in the manner and to
the extent provided for in Section 601.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation or other Person that is qualified and eligible pursuant to the
Trust Indenture Act to act as such, has an office or agency in the Borough of
Manhattan, The City of New York, and has a combined capital and surplus of at
least $50,000,000 (or is a member or subsidiary of a bank holding system with
aggregate combined capital and surplus of at least $50,000,000). If such
corporation or other Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, 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. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. No obligor upon any
Securities issued under this Indenture or person directly or indirectly
controlling, controlled by or under common control with such obligor shall
serve as Trustee under this Indenture.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee 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.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities
specifying such removal, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any holder
who has been a bona fide holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such bona fide holder described
in (d)(1) above, or
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(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any holder who has been a bona fide
holder of a Security 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 and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the holders and accepted appointment in the manner
hereinafter provided, any holder who has been a bona fide holder of a Security
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.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
holders as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
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No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. 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 the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation 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. 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 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor, directly
or indirectly, secured or unsecured, of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series issued upon
original issue and upon exchange, registration of transfer or partial
redemption 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 shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 (or being a member or subsidiary of a bank
holding system with aggregate combined capital and surplus of at least
$50,000,000) and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in
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accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving 30 days'
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving 30 days'
written notice thereof to such Authenticating Agent and to 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, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
holders as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series described in the
within-mentioned Indenture.
U.S. TRUST COMPANY OF TEXAS, N.A.,
As Trustee
By
-----------------------------------
As Authenticating Agent
By
----------------------------------
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after each Regular
Record Date, a list for each series of Securities, in such form as the
Trustee may reasonably require, of all information in the possession or
control of the Company, or its paying agents, as to the names and
addresses of the holders as of such Regular Record Date, and
(b) 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications To holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of holders to communicate with other holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to holders of Registered
Securities such reports concerning the Trustee and its actions under this
Indenture as may be required under this Indenture and pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12
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months shall be transmitted no later than May 15 of each year, commencing with
the May 15 first following the issuance of the Securities.
(b) A copy of each such report shall, at the time of such
transmission to holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange and of any delisting thereof.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission. In the event the Company is not subject to the
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the
Company shall file with the Trustee (a) within 60 days after the end of each of
the Company's first three fiscal quarters in each fiscal year, a report
containing unaudited financial statements with respect to such fiscal quarter
and (b) within 105 days after the end of the Company's fiscal year, a report
containing audited financial statements with respect to such fiscal year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer, lease or otherwise dispose of its properties and
assets substantially as an entirety to any Person, and the Company shall not
permit any Person to consolidate with or merge into the Company or convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged
or the Person which acquires by conveyance or transfer or otherwise, or
which leases, the properties and assets of the Company substantially as
an entirety shall be a Corporation or other similar legal entity, shall
be organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and
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punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, lease or other disposition
and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture complies with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Corporation Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer, lease or other
disposition of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer, lease or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of holders.
Without the consent of any holders, the Company, when authorized
by 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 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 and any coupons
appertaining thereto (and if such covenants are to be for the benefit of
less than all series of Securities and any coupons
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appertaining thereto, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registerable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (A) shall either (i) apply
to any Security and coupons appertaining thereto, if any, of any series
created prior to the execution of such supplemental indenture and
entitled to the benefit of such provisions nor (ii) modify the rights of
the holder of any such Security and coupons appertaining thereto, if
any, with respect to such provision or (B) shall become effective only
when there is no such Security or coupons appertaining thereto,
Outstanding; or
(6) to secure the Securities and coupons appertaining thereto,
if any, pursuant to the requirements of Article Ten or otherwise; or
(7) to establish the form or terms of Securities and coupons
appertaining thereto, if any, of any series as permitted by Sections 201
and 301; or
(8) 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 611; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action pursuant to
this clause (9) shall not adversely affect the interests of the holders
in any material respect.
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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, by Act of said holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
holders of Securities and coupons appertaining thereto, if any, of such series
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change the Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption 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
(3) modify any of the provisions of this Section, Section 513
or Section 1007, 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
covenants or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to effect the
rights under this Indenture of the holders of Securities of any other series.
It shall not be necessary for any Act of holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the holders entitled to consent to any indenture
supplemental hereto. If a record date is fixed, then those persons who were
holders at such record date (or their duly designated
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proxies), and only those persons, shall be entitled to consent to such
supplemental Indenture or to revoke any consent previously given, whether or
not such persons continue to be holders after such record date. No such
consent shall be valid or effective for more than 90 days after such record
date.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting any additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. 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.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company 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 and coupons appertaining thereto, if any, of such series.
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities or any coupons appertaining thereto. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest due on and payable with respect to Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments, as are evidenced thereby as they
severally mature.
Section 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any such
series of Securities, an office or agency where Securities of that series may
be presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of Manhattan, the City
of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange for Registered Securities, where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Bearer Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Securities of that
series are listed on the International Stock Exchange of the United Kingdom and
the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except
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that Bearer Securities of that series and the related coupons may be presented
and surrendered for payment at the office of any Paying Agent for such series
located outside the United States, and the Company hereby appoints the Trustee
as its agent to receive all such presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company 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, nor shall any
payments be made in respect of Bearer Securities or coupons appertaining
thereto pursuant to the presentation to the Company or its designated Paying
Agents within the United States; provided, however, that, if the Securities of
a series are denominated and payable in Dollars, payment of principal of and
any premium and interest on any Bearer Security shall be made at the office of
the Company's Paying Agent in The Borough of Manhattan, The City of New York,
if (but only if) payment in Dollars of the full amount of such principal,
premium or interest, as the case may be, at all offices or agencies outside the
United States maintained for the 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 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 will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Security 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 and coupons appertaining thereto, if
any, it will, on or before each due date of the principal of (and premium, if
any) or interest on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will 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 and coupons appertaining thereto, if any, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities of that series, deposit in immediately available funds with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
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The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent; and
(2) at any time during the continuance of any 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 any 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 trusts 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 money.
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 (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has 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 and any coupons appertaining thereto, if any, shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, unless an applicable abandonment statute designates another
Person, 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 a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in New York, New York, 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, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 1004. Limitation on Liens.
Nothing in this Indenture or in the Securities shall in any
way restrict or prevent the Company or any Subsidiary from incurring any
indebtedness; provided that the Company covenants and agrees that neither it
nor any Restricted Subsidiary will create or cause to be created, by issuance,
assumption or guarantee (including in connection with any merger, consolidation
or other transaction described in Article Eight, whether or not otherwise
permitted under Article Eight) of any notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed (notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed being hereinafter in this
Article called "Debt") any mortgage, lien, security
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interest, pledge, charge or other encumbrances (mortgages, liens, security
interests, charges or other encumbrances being hereinafter in this Article
called "Mortgages") upon any Mineral Interest or upon any shares of capital
stock or debt of any Restricted Subsidiary, whether such Mineral Interest,
shares or debt are owned on the date of this Indenture or hereafter acquired,
without effectively providing that the Securities then Outstanding (together
with, if the Company so determines, any other indebtedness or obligation of the
Company or any Restricted Subsidiary then existing and any other indebtedness
or obligation of the Company or any Restricted Subsidiary thereafter created
which is not subordinate to the Securities) shall be secured equally and
ratably with (or prior to) such Debt so long as such Debt shall be outstanding,
except that the foregoing provisions shall not apply to:
(1) Mortgages in existence on the date of this Indenture;
(2) Mortgages affecting a Mineral Interest, shares of capital
stock or debt of a Corporation at the time it becomes a Subsidiary or
at the time it is merged into or consolidated with the Company or a
Subsidiary, or on any shares of capital stock or debt of any
Restricted Subsidiary at the time it becomes a Restricted Subsidiary,
whether such Mineral Interest, shares or debt are owned on the date of
this Indenture or hereafter acquired;
(3) Mortgages on property existing at the time of
acquisition of such property, or Mortgages on any property hereafter
acquired by the Company or any Restricted Subsidiary which are created
or assumed to secure the payment of all or any part of the purchase
price of such property or to secure any Debt incurred prior to, at the
time of, or within 120 days after, the acquisition of such property
for the purpose of financing all or any part of the purchase price
thereof;
(4) Mortgages on property hereafter constructed or
improved by the Company or any Restricted Subsidiary which are created
or assumed to secure the payment of all or any part of the cost of
such construction or improvement; provided, however, that any such
Mortgage shall not apply to any property heretofore owned by the
Company or any Restricted Subsidiary;
(5) Mortgages on property of the Company or a Restricted
Subsidiary to secure the payment of all or any part of the costs
incurred after the date of this Indenture of exploration, drilling,
mining or development of such property for the purposes of increasing
the production and sale or other disposition of oil, gas or other
minerals or any Debt incurred to provide funds for all or any such
purposes;
(6) Mortgages which secure only Debt of a Restricted
Subsidiary owed to the Company or to another Restricted Subsidiary;
(7) Mortgages in favor of the United States of America or
any State thereof, or any department, agency, instrumentality or
political subdivision of any such jurisdiction, to secure partial,
progress, advance or other payments pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of
financing all
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or any part of the purchase price or cost of constructing or improving
the property subject thereto, including, without limitation, Mortgages
to secure Debt incurred in connection with the issuance or refunding
of tax-exempt private activity bonds; and
(8) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Mortgage referred to in the foregoing paragraphs (1) through (7),
inclusive, or of any Debt secured thereby, provided that the principal
amount of Debt secured thereby shall not exceed the principal amount
of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Mortgage
shall be limited to all or part of substantially the same property
which secured the Mortgage extended, renewed or replaced (plus
improvements on such property).
Notwithstanding the foregoing provisions of this Section 1004, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee Debt secured by Mortgages which would otherwise be subject to the
foregoing restrictions, in an aggregate principal amount which, together with
the aggregate outstanding principal amount of all other Debt of the Company and
its Restricted Subsidiaries which would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under paragraphs (1)
through (8), inclusive, above) does not at any one time exceed 10% of the
Consolidated Net Tangible Assets of the Company and its Restricted
Subsidiaries.
Notwithstanding the foregoing, the sale or other transfer of (i) oil,
gas or other minerals in place for a period of time only, or in an amount such
that the transferee will realize therefrom a specified amount of money (however
determined) or a specified amount of such oil , gas or other minerals, or (ii)
any other interest in property of the character commonly referred to as a
"production payment," shall not be deemed to create Debt secured by a Mortgage.
Section 1005. Restrictions on Sales and Leasebacks.
Subject to Section 301(o), the Company covenants and agrees
that neither it nor any Restricted Subsidiary will enter into any Sale and
Leaseback Transaction with any Person (except the Company or a Restricted
Subsidiary), unless:
(1) The Company or such Restricted Subsidiary would be
entitled to incur such indebtedness in a principal amount equal to the
Attributable Debt with respect to such Sale and Leaseback Transaction,
secured by a Mortgage on the property subject to such Sale and
Leaseback Transaction pursuant to Section 1004 without equally and
ratably securing the Securities pursuant Section 1004;
(2) After the date on which the Securities are originally
issued and within a period commencing 180 days prior to the
consummation of such Sale and Leaseback Transaction and ending 180
days after the consummation thereof, the Company or such Restricted
Subsidiary shall have expended for property used or to be used in the
ordinary course of business of the Company and the Restricted
Subsidiaries (including amounts expended for the acquisition,
exploration, drilling and development thereof, and for
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additions, alterations, repairs and improvements thereto) an amount
equal to all or a portion of the net proceeds of such Sale and
Leaseback Transaction and the Company shall have elected to designate
such amount as a credit against such Sale and Leaseback Transaction
(with any amount not being so designated to be applied in clause (c)
below); or
(3) The Company, during the 365-day period after the
effective date of such Sale and Leaseback Transaction, shall have
applied to the voluntary defeasance or retirement of any Senior
Indebtedness an amount equal to the greater of (i) the net proceeds of
the sale or transfer of the property leased in such Sale and Leaseback
Transaction and (ii) the fair value, as determined by the Board of
Directors of the Company, of such property at the time of entering
into such Sale and Leaseback Transaction (in either case adjusted to
reflect the remaining term of the lease and any amount expended by the
Company or any Restricted Subsidiary as set forth in clause (2)
above), less an amount equal to the principal amount of Senior
Indebtedness voluntarily defeased or retired by the Company within
such 365-day period and not designated as a credit against any other
Sale and Leaseback Transaction entered into by the Company or any
Restricted Subsidiary during such period.
Section 1006. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, in each case ending after the
date hereof, an Officers' Certificate, stating that a review of the activities
of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his knowledge the Company is not in default in
the performance or observance of any of the terms, provisions and conditions
hereof or, if a default or Event of Default shall have occurred, describing all
such defaults or Events of Default of which he may have knowledge and that to
the best of his knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on
the Securities are prohibited or if such event has occurred, a description of
the event.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 1004 or 1005,
inclusive 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 shall, by Act of such holders, either
waive such compliance in such instance or generally waive 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.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, 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 and whether the Trustee is to give the notice of redemption. In
case of redemption in whole, the Company shall notify the Trustee of such
redemption at least 15 days prior to the date the notice of redemption is to be
sent and whether the Trustee is to give such notice. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officer's Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series 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
(including pro rata or by lot) as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
$1,000 or any integral multiple thereof) of the principal amount of Securities
of that series of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each
Security Registrar 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 amount of such Securities which has been
or is to be redeemed.
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Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, mailed not less than 15 nor more than 60 days prior to the
Redemption Date, to each holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, are to be surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is
the case;
(7) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons appertaining thereto 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,
or security or indemnity satisfactory to the Company, the Trustee and
any Paying Agent is furnished; and
(8) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not be redeemed, and
if such Bearer Securities may be exchanged for Registered Securities
not subject to redemption on such Redemption Date pursuant to Section
305 or otherwise, the last date, as determined by the Company, on
which such exchanges may be made.
A notice of redemption 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 Company Request, by the Trustee in the name and at
the expense of the Company.
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Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit 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 immediately available funds sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be redeemed. Upon surrender of any
such Security for redemption in accordance with said notice, together with all
coupons appertaining thereto, if any, maturing at the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that, unless
otherwise specified as provided in Section 301, installments of interest 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 relevant Record Dates according to
their terms and the provisions of Section 307 and, provided further, that all
payments on Bearer Securities shall be made only in the manner provided in
Section 1002 for payments on Bearer Securities.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons appertaining thereto 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
appertaining thereto, or the surrender of such missing coupon or coupons
appertaining thereto 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 deduction;
provided, however, that interest represented by coupon appertaining thereto
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons appertaining thereto.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
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Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or 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 Security or Securities, 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.
Section 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301,
the Company and any Affiliate of the Company may at any time purchase or
otherwise acquire Securities or coupons appertaining thereto in the open market
or by private agreement; provided that purchases or other acquisitions of
Bearer Securities or coupons appertaining thereto by the Company or any
Affiliate of the Company may be made only outside the United States, and
payments therefor may be made only upon surrender of such Bearer Securities or
coupons appertaining thereto at a location outside the United States and only
in the manner provided for payments on Bearer Securities in Section 1002. Such
acquisition shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by such Securities or coupons
appertaining thereto. Any Securities or coupons appertaining thereto purchased
or acquired by the Company may be delivered to the Trustee and, upon such
delivery, the indebtedness represented thereby shall be deemed satisfied.
Section 309 shall apply to all Securities and coupons so delivered.
Section 1109. Effect of Notice of Redemption.
Once notice of redemption is mailed, the Securities called
for redemption become due and payable on the specified Redemption Date at the
Redemption price.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any
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payment in excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional sinking fund
payment." If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the term of Securities of such
series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a
series (other than any previously called of redemption), together in the case
for any Bearer Securities of such series with all unmatured coupons
appertaining thereto, and (2) may apply as a credit Securities of a series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at
any time, to have either Section 1302 or Section 1303 applied to the
Outstanding Securities of any series designated pursuant to Section 301 as
being defeasible pursuant to this Article Thirteen
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(hereinafter called a "Defeasible Series"), upon compliance with the conditions
set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1302 applied to the Outstanding Securities of any
Defeasible Series and subject to the proviso to Section 1302, the Company shall
be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter
called "Defeasance"). For this purpose, such Defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all its
other obligations under the Securities of such series and this Indenture
insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the right of holders of Securities of such series
to receive, solely from the trust fund described in Section 1304 and as more
fully set forth in such Section, payments in respect of the principal of and
any premium and interest on such Securities of such series when payments are
due, (2) the Company's obligations with respect to the Securities of such
series under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article
Thirteen. Subject to compliance with this Article Thirteen, the Company may
exercise its option provided in Section 1301 to have this Section 1302 applied
to the Outstanding Securities of any Defeasible Series notwithstanding the
prior exercise of its option provided in Section 1301 to have Section 1303
applied to the Outstanding Securities of such series.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1303 applied to the Outstanding Securities of any
Defeasible Series, (1) the Company shall be released from its obligations under
Sections 1004 and 1005, inclusive, and Section 801, and (2) the occurrence of
any event specified in Sections 503(3), 501(4) (with respect to any of Sections
1004 and 1005, inclusive, and Section 801, 501(5) and 501(8) shall be deemed
not to be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section on and after
the date the conditions set forth in Section 1304 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance
means that 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 specified
Section (to the extent so specified in the case of Section 501(4)), whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this Indenture
and the Securities of such series shall be unaffected thereby.
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Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
either Section 1302 or Section 1303 to the Outstanding Securities of any
Defeasible Series:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 609 and agrees to
comply with the provisions of this Article Thirteen 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 Outstanding Securities of such
series, (A) money in an amount, or (B) U.S. Government Obligations
that 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, money in an amount,
or (C) a combination thereof, in each case sufficient, 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
any such other qualifying trustee) to pay and discharge, the principal
of and any premium and interest on the Securities of such series on
the respective Stated Maturities, in accordance with the terms of this
Indenture and the Securities of such series. As used herein, "U.S.
Government Obligation" means (x) any security that is (i) a direct
obligation of the United States of America for the payment of which
full faith and credit of the United States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depository receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended)
as custodian with respect to any U.S. Government Obligation specified
in Clause (x) and held by such custodian for the account of the holder
of such depository receipt, or with respect to any specific payment of
principal of or interest on any such U.S. Government Obligation,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian
in respect of the U.S. Government Obligation or the specific payment
of principal or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(b) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the
date first set forth hereinabove, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the
effect that, and based thereon such opinion shall confirm that, the
holders of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to
the Securities of such series and will be subject to Federal income
tax on the same amount, in the same manner and at the
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same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(c) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the holders of the Outstanding Securities of such
series will not recognize gain or loss for Federal income tax purposes
as a result of the deposit and Covenant Defeasance to be effected with
respect to the Securities of such series and will be subject to
Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(d) The Company, shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange, will not be
delisted as a result of such deposit.
(e) No Event of Default or event that (after notice or
lapse of time or both) would become an Event of Default shall have
occurred and be continuing at the time of such deposit or, with regard
to any Event of Default or any such event specified in Sections 501(6)
and (7), at any time on or prior to the 90th day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until after such 90th day).
(f) Such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act (assuming all Securities are in default within
the meaning of such Act).
(g) Such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(h) The Company, shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(i) Such Defeasance or Covenant Defeasance shall not
result in the trust arising from such deposit constituting an
investment company within the meaning of the Investment Company Act of
1940, as amended, unless such trust shall be qualified under such Act
or exempt from regulation thereunder.
Section 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section and Section 1306, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section 1304
in
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respect of the Securities of any Defeasible Series shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities of
such series and this Indenture, to the payment, either directly or through any
such Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the holders of Securities of such series, of all sums
due and to become due thereon in respect of principal and any premium and
interest, but money so held in trust need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge that
by law is for the account of the holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it
as provided in Section 1304 with respect to Securities of any Defeasible Series
that, 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 that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with
respect to the Securities of such series.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with this Article Thirteen with respect to the Securities
of any series by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
then the Company's obligations under this Indenture and the Securities of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Thirteen with respect to Securities of such series
until such time as the Trustee or Paying Agent is permitted to apply all money
held in trust pursuant to Section 1305 with respect to Securities of such
series in accordance with this Article Thirteen; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any
Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of Securities of such
Series to receive such payment from the money so held in trust.
* * * *
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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
NOBLE AFFILIATES, INC.
[CORPORATE SEAL] By
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
- -----------------------------
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
[CORPORATE SEAL] By
-------------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
Attest:
- -----------------------------
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STATE OF ____________ )
)
COUNTY OF __________ )
On the ___ day of April, 1997, before me personally came
_____________________, to me known, who, being by me duly sworn, did depose
and say that he is _____________________________________________ of Noble
Affiliates, Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate 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.
[NOTARIAL SEAL]
----------------------------------------
Notary Public
My commission expires
--------------------------
STATE OF )
------------ )
COUNTY OF )
----------
On the ___ day of April, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he is _______________________ of U.S. TRUST COMPANY OF TEXAS, N.A., one of
the corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said instrument
is such corporate 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.
[NOTARIAL SEAL]
----------------------------------------
Notary Public
My commission expires
--------------------------
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EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
NOBLE AFFILIATES, INC.
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities that are held by the undersigned or held
by you for the account of the undersigned (i) are owned by person(s) that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("United States
persons"), (ii) are owned by United States persons(s) that (A) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing
for their own account or for resale, or (B) acquired Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (A) or (B), each such United States financial institution hereby
certifies, on its own behalf or through its agent, that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a United
States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possession.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (i) in
the case of debt securities, the Securities are beneficially owned by (a) non-
U.S. person(s) or (b) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the Act; or (ii) in the
case of equity securities, the Securities are owned by (x) non-U.S. person(s)
(and such person(s) are not acquiring the Securities for the account or benefit
of U.S. person(s)) or (y) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of warrants
pursuant to Section 230.902(m) of Regulation S under the Act, then this is
further to certify that, except as set forth below, the Securities are being
exercised by and on behalf on non-U.S. person(s). As used in this paragraph
the term "U.S. person" has the meaning given to it by Regulation S under the
Act.
-1-
<PAGE> 84
As used herein, "United States" means the United States of America
(including the States and District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not related to $___________ of
such interest in the above Securities in respect of which we are not able to
certify and as to which we understand exchange and delivery of definitive
Securities (or, if relevant, exercise or any rights or collection of any
interest) cannot be made until we do so certify.
We understand that this certification is required in Connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
* Date:
------------------
Company Name:
-------------------------------------
By:
--------------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
As, or as Agent for, the beneficial owner(s) of the
Securities to which this Certificate relates
By:
--------------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
As, or as Agent for, the financial institution (if any)
through which a United States Person acquired the Securities
to which this Certificate relates
* To be dated no earlier than the Certification Date.
-2-
<PAGE> 85
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY [EUROCLEAR OR CEDEL S.A.]
NOBLE AFFILIATES, INC.
[Title of Securities]
(THE "SECURITIES")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of April 1, 1997, between
NOBLE AFFILIATES, INC. and U.S. TRUST COMPANY OF TEXAS, N.A., as of the date
hereof, $_____________ principal amount of the above captioned Securities (i) is
owned by persons that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its
source ("United States persons"), (ii) is owned by United States persons that
(A) are foreign branches of Unites States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165- 12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) acquired Securities
through foreign branches of Unites States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (A) or (B), each such United States financial
institution has certified, on its own behalf or through its agent, that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institutions for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (iii) above (whether or not
also described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the temporary Global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made
-1-
<PAGE> 86
by such Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) are no longer true and cannot be relied upon as of the date
hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interest party in such proceedings.
Dated:
-----------------------
(dated the Exchange Date or the Interest Payment Date)
as operator of [the Euroclear System CEDEL S.A.]
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
-2-
<PAGE> 1
EXHIBIT 4.6
NOBLE AFFILIATES, INC.
as Issuer
TO
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
First Indenture Supplement
Dated as of April ___, 1997
to
INDENTURE
Dated as of April 1, 1997
$250,000,000
___% Notes Due 2027
<PAGE> 2
FIRST INDENTURE SUPPLEMENT
FIRST INDENTURE SUPPLEMENT (the "First Indenture Supplement"), dated
as of April ___, 1997, between NOBLE AFFILIATES, INC., a Delaware corporation
(together with its successors and assigns as provided in the Indenture referred
to below, the "Company"), and U.S. TRUST COMPANY OF TEXAS, N.A., a national
banking association (together with its successors in trust thereunder as
provided in the Indenture referred to below, the "Trustee"), as trustee under
an Indenture, dated as of April 1, 1997, between the Company and the Trustee
(the "Indenture").
RECITALS
The Company has issued its _____% Notes Due 2027 in the aggregate
principal amount of $250,000,000 (the "Notes") that may be authenticated and
delivered pursuant to the Indenture and this First Indenture Supplement.
The Company may issue in the future additional Senior Debt Securities
pursuant to the Indenture.
Section 301 of the Indenture provides, among other things, that the
Company, when authorized by its Board of Directors, and the Trustee may at any
time and from time to time enter into an indenture supplemental to the
Indenture for the purpose of authorizing a Series of Senior Debt Securities and
to specify certain terms of such Series of Senior Debt Securities. The Board
of Directors of the Company has duly authorized the creation of the Notes, and
the Company and the Trustee, pursuant to Section 301 of the Indenture, are
executing and delivering this First Indenture Supplement in order to provide
for the Notes.
The Company has duly authorized the execution and delivery of this
First Indenture Supplement, the conditions set forth in the Indenture for the
execution and delivery of this First Indenture Supplement have been complied
with and all things necessary to make this First Indenture Supplement a valid
amendment of, and supplement to, the Indenture have been done by the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein, the Company agrees with the Trustee that the Indenture is
supplemental and amended, solely to the extent and for the purposes expressed
herein, for the equal and proportionate benefit of all holders of the Notes
(the "Holders"), as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Unless the context otherwise requires, the terms defined
in the Indenture shall, for all purposes of this First Indenture Supplement,
have the meanings therein defined.
-2-
<PAGE> 3
SECTION 1.2. Unless the context otherwise requires, the terms defined
in this First Indenture Supplement (including the preamble hereof) shall, for
all purposes of the Indenture as supplemented and amended by this First
Indenture Supplement, have the meanings herein defined.
ARTICLE II
APPLICABILITY OF CERTAIN PROVISIONS
SECTION 2.1. Notwithstanding Article Eleven of the Indenture, prior
to maturity the Notes will not be redeemable at the option of the Company or
otherwise.
SECTION 2.2. Notwithstanding Article Twelve of the Indenture, no
Sinking Fund will be established with respect to the Notes and the Notes will
not be subject to any Sinking Fund payments.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Nothing in this First Indenture Supplement, express or
implied, is intended or shall be construed to confer upon, or to give to, any
person or corporation, other than the parties hereto, their successors and
assigns, and the Holders, any right, remedy or claim under or by reason of this
First Indenture Supplement or any provision hereof; and the provisions of this
First Indenture Supplement are for the exclusive benefit of the parties hereto,
their successors and assigns, and the Holders.
SECTION 3.2. This First Indenture Supplement shall for all purposes
be deemed to be a contract made under, governed by and construed in accordance
with the laws of the State of New York.
In case any provision in this First Indenture Supplement 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.
If any provision of this First Indenture Supplement limits, qualifies
or conflicts with any other provision required to be included in this First
Indenture Supplement or the Indenture by the Trust Indenture Act, such other
provision which is so required to be included shall control.
SECTION 3.3. The recitals contained herein shall be taken as the
statements of the Company and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this First Indenture Supplement.
SECTION 3.4. The descriptive headings of the several Articles of this
First Indenture Supplement are inserted for convenience only and shall not
affect the construction hereof.
-3-
<PAGE> 4
SECTION 3.5. This First Indenture Supplement may be simultaneously
executed in any number of counterparts, each of which when so executed and
delivered shall be an original; but such counterparts shall together constitute
but one and the same instrument.
SECTION 3.6. The Company represents and warrants that it is duly
authorized under all applicable laws to execute and deliver this First
Indenture Supplement and that all corporate action on its part required for the
execution and delivery of this First Indenture Supplement has been duly and
effectively taken.
[Remainder of page purposefully left blank.]
-4-
<PAGE> 5
IN WITNESS WHEREOF, the Company and the Trustee have caused this First
Indenture Supplement to be duly executed by their respective officers thereunto
duly authorized and their respective seals duly attested to be hereunto affixed
all as of the day and year first above written.
NOBLE AFFILIATES, INC.
[SEAL]
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
ATTEST:
- ----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
U.S. TRUST COMPANY OF TEXAS, N.A.
[SEAL] By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
ATTEST:
- ----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-5-
<PAGE> 6
STATE OF _________ Section
Section
COUNTY OF ________ Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared _________________________ and
____________________________, known to me to be the persons and officers whose
names are subscribed to the foregoing instrument and acknowledged to me that
the same was the act of the said NOBLE AFFILIATES, INC., a Delaware
corporation, and that they executed the same as the act of said corporation for
the purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of April, 1997.
--------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
--------------------------------------
Printed Name of Notary Public
- ----------------------------------
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared ________________________ and
____________________________, known to me to be the person and officer whose
name is subscribed to the foregoing instrument and acknowledged to me that the
same was the act of the said U.S. TRUST COMPANY OF TEXAS, N.A., a national
banking association, and that he executed the same as the act of said banking
association for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of April, 1997.
--------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
--------------------------------------
Printed Name of Notary Public
- ----------------------------------
-6-
<PAGE> 7
FORM OF DEBT SECURITIES
(NOTE)
This Note is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Note
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, this Note shall be a Global Security subject to the
foregoing, except in such limited circumstances.
NOBLE AFFILIATES, INC.
REGISTERED PRINCIPAL AMOUNT
No: 1 $250,000,000
CUSIP: ___________
____% NOTE DUE 2027
NOBLE AFFILIATES, INC., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of TWO HUNDRED FIFTY THOUSAND DOLLARS on April ___, 2027 ("Stated
Maturity"), and to pay interest thereon from April ___, 1997, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semiannually on April ___ and October ___, in each year (each, an
"Interest Payment Date"), commencing October ___, 1997, at the rate of ____%
per annum, until the principal hereof is paid or made available for payment.
Interest on the Note shall be computed on the basis of a 360- day year
consisting of twelve 30-day months. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ____________ or ____________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America
-1-
<PAGE> 8
as at the time of payment is legal tender for payment of public and private
debts. The Company, however, may pay principal and interest by check payable
in such money. At the option of the Company, payment of interest may be made
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register; provided, that, notwithstanding anything
else contained herein, if this Note is a Global Security and is held in book-
entry form through the facilities of the Depositary, payments on this Note will
be made to the Depositary or its nominee in accordance with the arrangements
then in effect between the Trustee and the Depositary.
Reference is hereby made to the further provisions of this Note set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth herein.
This is one of the Securities referred to in the within-mentioned
Indenture.
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-2-
<PAGE> 9
NOBLE AFFILIATES, INC.
___% Note Due 2027
This Note is one of a duly authorized issue of Securities of the
Company designated as its $250,000,000 ___% Notes Due 2027 (herein called the
"Notes"), limited in aggregate principal amount up to $250,000,000, issued and
to be issued under an Indenture, dated as of April 1, 1997 (herein called the
"Indenture"), between the Company and U.S. Trust Company of Texas, N.A., as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered.
The Notes are not otherwise subject to redemption prior to maturity
and no sinking fund is provided for the Notes.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of at least
a majority in aggregate principal amount of the Notes at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Holders of all the Notes, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
The Indenture provides that no Holder of any Note may enforce any
remedy under the Indenture except in the case of failure of the Trustee to act
after notice of default and after request by the Holders of 25 percent in
principal amount of the Outstanding Notes and the offer and, if requested,
provision to the Trustee of reasonable indemnity satisfactory to the Trustee;
provided, however, that such provision shall not prevent the Holder hereof from
enforcing payment of the principal of or interest on this Note after the same
shall have become due.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
-3-
<PAGE> 10
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar and duly executed
by the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made to the Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note and the rights of the Holder hereof shall be governed by and
construed in accordance with the laws of the State of New York without regard
to principles of conflicts of laws.
-4-
<PAGE> 11
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
-----------
NOBLE AFFILIATES, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Attest:
- ---------------------------
-5-
<PAGE> 12
ASSIGNMENT
For value received __________________________________________________________
hereby sell(s), assign(s) and transfer(s) unto ______________________________
_________________________________________, __________________________________
[Please insert social security or other identifying number of assignee], the
within Note, hereby irrevocably constituting and appointing _____________
__________________________________ attorney to transfer the said Note on
the books of the Company, with full power of substitution in the premises.
Date:
-------------------- --------------------------------------
Signature(s)
Note: The signature(s) to this
assignment must correspond with the
name as it appears upon the face of the
within Note in every particular,
without alteration, or enlargement or
any change whatever.
- --------------------------
Signature Guarantee
Note: Signature(s) must be guaranteed by an eligible guarantor institution
meeting the requirements of the Trustee, which requirements will
include membership or participation in STAMP or such other "signature
guarantee program" as may be determined by the Trustee in addition to,
or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
-6-
<PAGE> 1
EXHIBIT 4.7
NOBLE AFFILIATES, INC.
as Issuer
TO
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
Second Indenture Supplement
Dated as of April ___, 1997
to
INDENTURE
Dated as of April 1, 1997
$100,000,000
___% Notes Due 2097
<PAGE> 2
SECOND INDENTURE SUPPLEMENT
SECOND INDENTURE SUPPLEMENT (the "Second Indenture Supplement"), dated
as of April ___, 1997, between NOBLE AFFILIATES, INC., a Delaware corporation
(together with its successors and assigns as provided in the Indenture referred
to below, the "Company"), and U.S. TRUST COMPANY OF TEXAS, N.A., a national
banking association (together with its successors in trust thereunder as
provided in the Indenture referred to below, the "Trustee"), as trustee under
an Indenture, dated as of April 1, 1997, between the Company and the Trustee
(the "Indenture").
RECITALS
The Company has issued its _____% Notes Due 2097 in the aggregate
principal amount of $100,000,000 (the "Notes") that may be authenticated and
delivered pursuant to the Indenture and to this Second Indenture Supplement.
The Company may issue in the future additional Senior Debt Securities
pursuant to the Indenture.
Section 301 of the Indenture provides, among other things, that the
Company, when authorized by its Board of Directors, and the Trustee may at any
time and from time to time enter into an indenture supplemental to the
Indenture for the purpose of authorizing a Series of Senior Debt Securities and
to specify certain terms of such Series of Senior Debt Securities. The Board
of Directors of the Company has duly authorized the creation of the Notes, and
the Company and the Trustee, pursuant to Section 301 of the Indenture, are
executing and delivering this Second Indenture Supplement in order to provide
for the Notes.
The Company has duly authorized the execution and delivery of this
Second Indenture Supplement, the conditions set forth in the Indenture for the
execution and delivery of this Second Indenture Supplement have been complied
with and all things necessary to make this Second Indenture Supplement a valid
amendment of, and supplement to, the Indenture have been done by the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein, the Company agrees with the Trustee that the Indenture is
supplemental and amended, solely to the extent and for the purposes expressed
herein, for the equal and proportionate benefit of all holders of the Notes
(the "Holders"), as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Unless the context otherwise requires, the terms defined
in the Indenture shall, for all purposes of this Second Indenture Supplement,
have the meanings therein defined.
-2-
<PAGE> 3
SECTION 1.2. Unless the context otherwise requires, the terms defined
in this Second Indenture Supplement (including the preamble hereof) shall, for
all purposes of the Indenture as supplemented and amended by this Second
Indenture Supplement, have the meanings herein defined.
ARTICLE II
APPLICABILITY OF CERTAIN PROVISIONS
SECTION 2.1. Notwithstanding Article Eleven of the Indenture, but
except as provided in the Form of Note attached hereto, prior to maturity the
Notes will not be redeemable at the option of the Company or otherwise.
SECTION 2.2. Notwithstanding Article Twelve of the Indenture, no
Sinking Fund will be established with respect to the Notes and the Notes will
not be subject to any Sinking Fund payments.
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1. Nothing in this Second Indenture Supplement, express or
implied, is intended or shall be construed to confer upon, or to give to, any
person or corporation, other than the parties hereto, their successors and
assigns, and the Holders, any right, remedy or claim under or by reason of this
Second Indenture Supplement or any provision hereof; and the provisions of this
Second Indenture Supplement are for the exclusive benefit of the parties
hereto, their successors and assigns, and the Holders.
SECTION 3.2. This Second Indenture Supplement shall for all purposes
be deemed to be a contract made under, governed by and construed in accordance
with the laws of the State of New York.
In case any provision in this Second Indenture Supplement 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.
If any provision of this Second Indenture Supplement limits, qualifies
or conflicts with any other provision required to be included in this Second
Indenture Supplement or the Indenture by the Trust Indenture Act, such other
provision which is so required to be included shall control.
SECTION 3.3. The recitals contained herein shall be taken as the
statements of the Company and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Indenture Supplement.
-3-
<PAGE> 4
SECTION 3.4. The descriptive headings of the several Articles of this
Second Indenture Supplement are inserted for convenience only and shall not
affect the construction hereof.
SECTION 3.5. This Second Indenture Supplement may be simultaneously
executed in any number of counterparts, each of which when so executed and
delivered shall be an original; but such counterparts shall together constitute
but one and the same instrument.
SECTION 3.6. The Company represents and warrants that it is duly
authorized under all applicable laws to execute and deliver this Second
Indenture Supplement and that all corporate action on its part required for the
execution and delivery of this Second Indenture Supplement has been duly and
effectively taken.
[Remainder of page purposefully left blank.]
-4-
<PAGE> 5
IN WITNESS WHEREOF, the Company and the Trustee have caused this
Second Indenture Supplement to be duly executed by their respective officers
thereunto duly authorized and their respective seals duly attested to be
hereunto affixed all as of the day and year first above written.
NOBLE AFFILIATES, INC.
[SEAL]
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
ATTEST:
- ----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
U.S. TRUST COMPANY OF TEXAS, N.A.
[SEAL] By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
ATTEST:
- ----------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-5-
<PAGE> 6
STATE OF _________ Section
Section
COUNTY OF ________ Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared _________________________ and
____________________________, known to me to be the persons and officers whose
names are subscribed to the foregoing instrument and acknowledged to me that
the same was the act of the said NOBLE AFFILIATES, INC., a Delaware
corporation, and that they executed the same as the act of said corporation for
the purposes and consideration therein expressed, and in the capacity therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of April, 1997.
--------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
--------------------------------------
Printed Name of Notary Public
- ----------------------------------
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
BEFORE ME, the undersigned authority, a Notary Public in and for said
state, on this day personally appeared ________________________ and
____________________________, known to me to be the person and officer whose
name is subscribed to the foregoing instrument and acknowledged to me that the
same was the act of the said U.S. TRUST COMPANY OF TEXAS, N.A., a national
banking association, and that he executed the same as the act of said banking
association for the purposes and consideration therein expressed, and in the
capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ____ day of April, 1997.
--------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
--------------------------------------
Printed Name of Notary Public
- ----------------------------------
-6-
<PAGE> 7
FORM OF DEBT SECURITIES
(NOTE)
This Note is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Note
authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, this Note shall be a Global Security subject to the
foregoing, except in such limited circumstances.
NOBLE AFFILIATES, INC.
REGISTERED PRINCIPAL AMOUNT
No: 1 $100,000,000
CUSIP: ___________
____% NOTE DUE 2097
NOBLE AFFILIATES, INC., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of ONE HUNDRED THOUSAND DOLLARS on April ___, 2097 ("Stated
Maturity"), and to pay interest thereon from April ___, 1997, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semiannually on April ___ and October ___, in each year (each, an
"Interest Payment Date"), commencing October ___, 1997, at the rate of ____%
per annum, until the principal hereof is paid or made available for payment.
Interest on the Note shall be computed on the basis of a 360- day year
consisting of twelve 30-day months. If, however, a Tax Event (as defined
below) occurs, the Company shall have the right to advance the Stated Maturity
as provided for below. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the ____________ or ____________ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than
10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
-1-
<PAGE> 8
Payment of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by check payable in such money. At the option of the
Company, payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register;
provided, that, notwithstanding anything else contained herein, if this Note is
a Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Reference is hereby made to the further provisions of this Note set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth herein.
This is one of the Securities referred to in the within-mentioned
Indenture.
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-2-
<PAGE> 9
NOBLE AFFILIATES, INC.
___% Note Due 2097
This Note is one of a duly authorized issue of Securities of the
Company designated as its $100,000,000 ___% Notes Due 2097 (herein called the
"Notes"), limited in aggregate principal amount up to $100,000,000, issued and
to be issued under an Indenture, dated as of April 1, 1997 (herein called the
"Indenture"), between the Company and U.S. Trust Company of Texas, N.A., as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are,
and are to be, authenticated and delivered.
Except as provided below, the Notes are not otherwise subject to
redemption prior to maturity and no sinking fund is provided for the Notes.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of at least
a majority in aggregate principal amount of the Notes at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Holders of all the Notes, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
The Indenture provides that no Holder of any Note may enforce any
remedy under the Indenture except in the case of failure of the Trustee to act
after notice of default and after request by the Holders of 25 percent in
principal amount of the Outstanding Notes and the offer and, if requested,
provision to the Trustee of reasonable indemnity satisfactory to the Trustee;
provided, however, that such provision shall not prevent the Holder hereof from
enforcing payment of the principal of or interest on this Note after the same
shall have become due.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
-3-
<PAGE> 10
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar and duly executed
by the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made to the Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note and the rights of the Holder hereof shall be governed by and
construed in accordance with the laws of the State of New York without regard
to principles of conflicts of laws.
Upon the occurrence of a Tax Event (as defined herein), the Company
will have the right, without the consent of the Holders of the Notes, to
advance the Stated Maturity of this Note to the extent required, in the written
opinion of a nationally recognized independent tax counsel experienced in such
matters, such that, after advancing the Stated Maturity, interest paid on this
Note will be deductible for Federal income tax purposes.
In the event that the Company elects to exercise its right to advance
the Stated Maturity of this Note on the occurrence of a Tax Event, the Company
will mail a notice of the advanced Stated Maturity to each Holder of record of
the Notes by first-class mail not more than 60 days after the occurrence of
such Tax Event, stating the new Stated Maturity of this Note, and will cause
this Note to be amended accordingly. Such notice shall be effective
immediately upon mailing.
"Tax Event" means that the Company shall have received the written
opinion of a nationally recognized independent tax counsel experienced in such
matters, to the effect that, on or after the date of the original issuance of
the Notes, as a result of (A) any amendment to, clarification of, or change
(including any announced prospective change) in laws, or any proposed,
temporary or final regulations thereunder, of the United States, (B) any
judicial
-4-
<PAGE> 11
decision, official administrative pronouncement, authorization, ruling,
regulatory procedure, notice or announcement, including any notice or
announcement of proposal to adopt such procedures or regulations (an
"Administrative Action"), or (C) any amendment to, clarification of, or change
in the official position or the interpretation of such Administrative Action or
judicial decision that differs from the theretofore generally accepted
position, in each case on or after the date of the original issuance of the
Notes, such change in tax laws or regulations creates a more than insubstantial
risk that interest paid by the Company on the Notes is not, or will not be,
deductible, in whole or in part, by the Company for Federal income tax
purposes.
In addition, if a Tax Event occurs and in the opinion of a nationally
recognized independent tax counsel experienced in such matters there would,
notwithstanding any shortening of the Stated Maturity of the Notes, be more
than an insubstantial risk that interest paid by the Company on the Notes is
not, or will not be, deductible, in whole or in part, for purposes of United
States Federal income tax, the Company will have the right, within 90 days
following the occurrence of such Tax Event, to redeem the Notes in whole (but
not in part) at a redemption price equal to the greater of (i) 100 percent of
the principal amount of the Notes, and (ii) the sum of present values of the
Remaining Scheduled Payments (as defined herein) on the redemption date
discounted to maturity on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Yield (as defined herein)
plus ____ basis points, plus in either case accrued interest hereon to the date
of redemption.
"Treasury Yield" means, with respect to any redemption date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue (as defined herein), assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker (as defined herein) as having a
maturity comparable to the remaining term of the Notes or, if no such security
exists, a security that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of the
Notes. "Independent Investment Banker" means Morgan Stanley & Co. Incorporated
or UBS Securities LLC or, if neither firm is willing or able to select the
Comparable Treasury Issue, an independent investment banking institution of
national standing appointed by the Trustee.
"Comparable Treasury Price" means, with respect to any redemption
date, the average of the Reference Treasury Dealer Quotations (as defined
herein) for such redemption date. "Reference Treasury Quotations" means, with
respect to each Reference Treasury Dealer (as defined herein) and any
redemption date, the average of the bid and asked prices for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. New York
City time on the third Business Day preceding such redemption date.
"Reference Treasury Dealer" means each of Morgan Stanley & Co.
Incorporated, UBS Securities LLC and Chase Securities Inc., and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in
-5-
<PAGE> 12
New York City (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to this Note, the
remaining scheduled payments of the principal hereof to be redeemed and
interest hereon that would be due after the related redemption date but for
such redemption; provided, however, that, if such redemption date is not an
Interest Payment Date, the amount of the next succeeding scheduled interest
payment hereon will be reduced by the amount of interest accrued thereon to
such redemption date.
In the event that the Company elects to exercise its right to redeem
the Notes on the occurrence of a Tax Event, the Company will mail a notice of
such redemption to each Holder of record of the Notes by first-class mail at
least 30 and not more than 60 days prior to the date fixed for redemption.
Unless the Company defaults in payment of the redemption price, on and after
the redemption date interest will cease to accrue on the Notes.
-6-
<PAGE> 13
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
---------------
NOBLE AFFILIATES, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
Attest:
- ---------------------------
-7-
<PAGE> 14
ASSIGNMENT
For value received __________________________________________________________
hereby sell(s), assign(s) and transfer(s) unto ______________________________
_________________________________________, __________________________________
[Please insert social security or other identifying number of assignee], the
within Note, hereby irrevocably constituting and appointing _____________
__________________________________ attorney to transfer the said Note on
the books of the Company, with full power of substitution in the premises.
Date:
-------------------- --------------------------------------
Signature(s)
Note: The signature(s) to this
assignment must correspond with the
name as it appears upon the face of the
within Note in every particular,
without alteration, or enlargement or
any change whatever.
- ----------------------------------------
Signature Guarantee
Note: Signature(s) must be guaranteed by an eligible guarantor institution
meeting the requirements of the Trustee, which requirements will
include membership or participation in STAMP or such other "signature
guarantee program" as may be determined by the Trustee in addition to,
or in substitution for, STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
-8-
<PAGE> 1
EXHIBIT 5.1
March 26, 1997
Noble Affiliates, Inc.
110 West Broadway
Ardmore, Oklahoma 73401
Dear Sirs:
We have acted as counsel for Noble Affiliates, Inc., a Delaware
corporation (the "Company"), in connection with the preparation of the
Company's Registration Statement on Form S-3 (No. 333-18929) (the "Registration
Statement") filed with the Securities and Exchange Commission (the
"Commission") relating to the registration of up to $575 million aggregate
principal amount of debt securities ("Debt Securities") of the Company under
the Securities Act of 1933, as amended (the "Securities Act"). The sales of
the Debt Securities are proposed to be made in the manner described under "Plan
of Distribution" in the prospectus forming a part of the Registration Statement
(together with the form of prospectus supplement also forming a part thereof,
the "Prospectus").
Each series of Debt Securities will be issued under an Indenture (the
"Indenture") to be entered into between the Company and a trustee (the
"Trustee"), the forms of which Indenture are filed as Exhibits to the
Registration Statement. Each series of Debt Securities will be evidenced by a
supplement to the applicable Indenture (a "Supplemental Indenture").
In connection with the foregoing, we have examined the originals or
copies, certified or otherwise authenticated to our satisfaction, of the
Registration Statement, the form of the Indenture and such corporate records of
the Company, and other agreements, instruments and documents as we have deemed
necessary to require as a basis for the opinions hereinafter expressed. Where
facts material to the opinions hereinafter expressed were not independently
established by us, we have relied upon the statements of officers of the
Company, where we deemed such reliance appropriate under the circumstances.
Based upon the foregoing and in reliance thereon, and subject to the
assumptions and qualifications hereinafter specified, it is our opinion that
when (i) a series of Debt Securities to be sold by the Company in the manner
described in the Prospectus and the other matters relating thereto shall have
been approved by the Board of Directors of the Company (or a duly appointed and
authorized committee thereof), (ii) an Indenture and Supplemental Indenture
with respect to such series of Debt Securities shall have been authorized,
executed and delivered by the Company and the Trustee in substantially the
forms filed as Exhibits to the Registration Statement, and (iii) the Debt
Securities of such series shall have been issued, executed, authenticated,
delivered and sold against payment therefor in accordance with the provisions
of the Indenture and Supplemental Indenture relating thereto, the Debt
Securities
<PAGE> 2
Noble Affiliates, Inc.
March 26, 1997
Page 2
of such series will be validly issued and will constitute valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as enforcement thereof may be limited by (A) equitable
principles which may limit the availability of certain equitable remedies (such
as specific performance) in certain instances, (B) applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws related to or affecting
creditors' rights generally, and (C) a holding or judicial determination by a
court of competent jurisdiction that such obligations violate public policy of
the State of Texas.
We are members of the Bar of the State of Texas only and do not
purport to be experts on the laws of any state or jurisdiction other than the
State of Texas and the United States. Insofar as the opinions expressed herein
relate to matters governed by Delaware law, we have relied solely upon a
reading of the applicable statutes and the corporate records of the Company and
certificates of public officials and officers of the Company referenced above
with respect to the opinions given herein.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement and to the references to us under the
caption "Validity of the [Debt Securities]" in the Prospectus and any related
Prospectus Supplement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules or regulations of the Commission thereunder.
Respectfully submitted,
THOMPSON & KNIGHT,
A Professional Corporation
By: /s/ Michael L. Bengtson
----------------------------------
Michael L. Bengtson, Attorney
<PAGE> 1
EXHIBIT 12.1
NOBLE AFFILIATES, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------------------
1992 1993 1994 1995 1996
---------- ---------- ---------- ---------- ---------
<S> <C> <C> <C> <C> <C>
Income before taxes ............ $ 61,322 $ 20,659 $ 5,225 $ 7,998 $ 136,289
Add (deduct)
Fixed charges ................ 20,541 20,461 24,782 21,915 38,574
Interest capitalized ......... (1,260) (5,060) (7,183) (3,127) (2,165)
---------- ---------- ---------- ---------- ----------
Earnings as defined .......... $ 80,603 $ 36,060 $ 22,824 $ 26,786 $ 172,671
========== ========== ========== ========== ==========
Net interest expense ........... 19,222 15,342 17,546 18,744 36,309
Interest capitalized ........... 1,260 5,060 7,183 3,127 2,165
Interest portion of rental
expense ...................... 59 59 53 44 73
---------- ---------- ---------- ---------- ----------
Fixed charges as defined ..... $ 20,541 $ 20,461 $ 24,782 $ 21,915 $ 38,547
========== ========== ========== ========== ==========
Ratio of earnings to fixed
charges ...................... 3.92 1.76 0.92 1.22 4.48
========== ========== ========== ========== ==========
Rental expense adm report ...... 673,386 699,322 911,407 846,342 826,649
Weighted average rate .......... 0.088 0.084 0.058 0.052 0.088
Int portion of rent exp ........ 59257.97 58,743.05 52,861.61 44,009.78 72,745.11
</TABLE>
<PAGE> 1
EXHIBIT 25.1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION 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)
------------------
U.S. TRUST COMPANY OF TEXAS, N.A.
(Exact name of trustee as specified in its charter)
75-2353745
(State of incorporation (I.R.S. employer
if not a national bank) identification no.)
2001 Ross Avenue, Suite 2700 75201-2936
Dallas, Texas (Zip code)
(Address of trustee's
principal executive offices)
Compliance Officer
U.S. Trust Company of Texas, N.A.
2001 Ross Avenue, Suite 2700
Dallas, Texas 75201-2936
(214) 754-1200
(Name, address and telephone number of agent for service)
------------------
Noble Affiliates, Inc.
(Exact name of obligor as specified in its charter)
Delaware 73-0785597
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
110 West Broadway
Ardmore, Oklahoma 73401
(Address of principal executive offices) (Zip code)
------------------
% Senior Notes due 2027
-----
% Senior Notes due 2097
-----
(Title of the indenture securities)
================================================================================
<PAGE> 2
GENERAL
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.
Federal Reserve Bank of Dallas (11th District), Dallas, Texas
(Board of Governors of the Federal Reserve System)
Federal Deposit Insurance Corporation, Dallas, Texas
Office of the Comptroller of the Currency, Dallas, Texas
(b) Whether it is authorized to exercise corporate trust
powers.
The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
Trustee, describe each such affiliation.
None.
3. Voting Securities of the Trustee.
Furnish the following information as to each class of voting securities
of the Trustee:
As of March 24, 1997
- --------------------------------------------------------------------------------
Col A. Col B.
- --------------------------------------------------------------------------------
Title of Class Amount Outstanding
- --------------------------------------------------------------------------------
Capital Stock - par value $100 per share 5,000 shares
4. Trusteeships under Other Indentures.
7.25% Notes due 2023. There are no conflicts between 7.25% Notes due
2023 and ____% Senior Notes due 2027 and ______% Senior Notes due 2097.
5. Interlocking Directorates and Similar Relationships with the Obligor
or Underwriters.
Not Applicable
<PAGE> 3
6. Voting Securities of the Trustee Owned by the Obligor or its
Officials.
Not Applicable
7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Not Applicable
8. Securities of the Obligor Owned or Held by the Trustee.
Not Applicable
9. Securities of Underwriters Owned or Held by the Trustee.
Not Applicable
10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
Not Applicable
11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
Not Applicable
12. Indebtedness of the Obligor to the Trustee.
Not Applicable
13. Defaults by the Obligor.
Not Applicable
14. Affiliations with the Underwriters.
Not Applicable
15. Foreign Trustee.
Not Applicable
16. List of Exhibits.
T-1.1 - A copy of the Articles of Association of U.S. Trust
Company of Texas, N.A.; incorporated herein by reference to Exhibit
T-1.1 filed with Form T-1 Statement, Registration No. 22-21897.
<PAGE> 4
16. (con't.)
T-1.2 - A copy of the certificate of authority of U.S. Trust Company
of Texas, N.A. to commence business; incorporated herein by reference to
Exhibit T-1.2 filed with Form T-1 Statement, Registration No. 22-21897.
T-1.3 - A copy of the authorization of U.S. Trust Company of Texas,
N.A. to exercise corporate trust powers; incorporated herein by reference
to Exhibit T-1.3 filed with Form T-1 Statement, Registration No. 22-21897.
T-1.4 - A copy of the By-laws of the U.S. Trust Company of Texas,
N.A., as amended to date; incorporated herein by reference to Exhibit T-1.4
filed with Form T-1 Statement, Registration No. 22-21897.
T-1.6 - The consent of the Trustee required by Section 321(b) of the
Trust Indenture Act of 1939.
T-1.7 - A copy of the latest report of condition of the Trustee
published pursuant to law or the requirements of its supervising or
examining authority.
NOTE
As of March 24, 1997 the Trustee had 5,000 shares of Capital Stock outstanding,
all of which are owned by U.S. T.L.P.O. Corp. As of March 24, 1997 U.S.
T.L.P.O. Corp. had 35 shares of Capital Stock outstanding, all of which are
owned by U.S. Trust Corporation. U.S. Trust Corporation had outstanding
19,590,565 shares of $1 par value Common Stock as of March 24, 1997.
The term "Trustee" in Items 2, 5, 6, 7, 8, 9, 10 and 11 refers to each of U.S
Trust Company of Texas, N.A., U.S. T.L.P.O. Corp. and U.S. Trust Corporation.
Inasmuch as this Form T-1 is filed prior to the ascertainment by the Trustee of
all the facts on which to base responsive answers to Items 2, 5, 6, 7, 9, 10
and 11, the answers to said Items are based upon incomplete information. Items
2, 5, 6, 7, 9, 10 and 11 may, however, be considered correct unless amended by
an amendment to this Form T-1.
In answering any items in this Statement of Eligibility and Qualification which
relates to matters peculiarly within the knowledge of the obligors or their
directors or officers, or an underwriter for the obligors, the Trustee has
relied upon information furnished to it by the obligors and will rely on
information to be furnished by the obligors or such underwriter, and the
Trustee disclaims responsibility for the accuracy or completeness of such
information.
--------------------
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee,
U.S. Trust Company of Texas, N.A., a national banking association organized and
existing under the laws of the United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Dallas, and State of
Texas on the 26th day of March, 1997.
U.S. Trust Company of Texas, N.A.,
Trustee
By: /s/ JOHN C. STOHLMANN
-----------------------------------
John C. Stohlmann
Vice President
<PAGE> 6
EXHIBIT T-1.6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939 as amended in connection with the proposed issue of Noble Affiliates, Inc.
_____% Senior Notes due 2027 and _____% Senior Notes due 2097, we hereby
consent that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefore.
U.S. Trust Company of Texas, N.A.
By: /s/ JOHN C. STOHLMANN
-------------------------------
John C. Stohlmann
Vice President
<PAGE> 7
<TABLE>
<S> <C>
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
Federal Financial Institutions Examination Council OMB Number: 1557-0081
Expires March 31,1999
- -----------------------------------------------------------------------------------------------------------------------
Please Refer to Page i, (1)
(LOGO) Table of Contents, for
the required disclosure
of estimated burden
- -----------------------------------------------------------------------------------------------------------------------
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR A BANK WITH
DOMESTIC OFFICES ONLY AND TOTAL ASSETS OF LESS THAN $100
MILLION - - FFIEC 034
(961231)
-----------
REPORT AT THE CLOSE OF BUSINESS DECEMBER 31, 1996 (RCRI 9999)
This report is required by law: 12 U.S.C. Section 324 (State This report form is to be filed by banks with domestic
member banks); 12 U.S. c. Section 1817 (State nonmember offices only. Banks with branches and consolidated
banks); and 12 U.S. C. Section 161 (National banks). subsidiaries in U.S. territories and possessions, Edge or
Agreement subsidiaries, foreign branches, consolidated
foreign subsidiaries, or International Banking Facilities
must file FFIEC 031.
- -----------------------------------------------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by The Reports of Condition and Income are to be prepared in
an authorized officer and the Report of Condition must be accordance with Federal regulatory authority instructions.
attested to by not less than two directors (trustees) for NOTE: these instructions may in some cases differ from
State nonmember banks and three directors for State member generally accepted accounting principles.
and National Banks.
I, Alfred B. Childs, SVP & Cashier We, the undersigned directors (trustees), attest to the
----------------------------------- correctness of this Report of Condition (including the
Name and Title of Officer Authorized to Sign Report supporting schedules) and declare that it has been examined
by us and to the best of our knowledge and belief has been
of the named bank do hereby declare that these Reports of prepared in conformance with the instructions issued by the
Condition and Income (including the supporting schedules) appropriate Federal regulatory authority and is true and
have been prepared in conformance with the instructions correct.
issued by the appropriate Federal regulatory authority and
are true to the best of my knowledge and belief. /s/ Stuart M. Pearman
-------------------------
Director (Trustee)
/s/ Alfred B. Childs
- ----------------------------
Signature of Officer Authorized to Sign Report /s/ J. T. Moore Jr.
------------------------
Director (Trustee)
January 15, 1997
- ------------------
Date of Signature /s/ Peter J. Denker
-------------------------
Director (Trustee)
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FOR BANKS SUBMITTING HARD COPY REPORT FORMS:
STATE MEMBER BANKS: Return the original and one copy to the NATIONAL BANKS: Return the original only in the special
appropriate Federal Reserve District Bank. return address envelope provided. If express mail is used
in lieu of the special return address envelope, return the
STATE NONMEMBER BANKS: Return the original only in the original only to the FDIC, c/o Quality Data Systems, 2127
special return address envelope provided. If express mail Espey Court, Suite 204, Crofton, MD 21114.
is used in lieu of the special return address envelope,
return the original only to the FDIC, c/o Quality Data
Systems, 2127 Espey Court, Suite 204, Crofton, MD 21114.
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FDIC Certificate Number ____________ 12-31-96
(RCRI 9050) Banks should affix the address label in this space.
U. S. Trust Company of Texas, National Association
--------------------------------------------------
Legal Title of Bank (TEXT 9010)
2001 Ross Avenue, Suite 2700
----------------------------
City (TEXT 9130)
Dallas, TX 75201
-------------------------------------------------------------
State Abbrev. (TEXT 9200) ZIP Code (TEXT 9220)
Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of
the Currency
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Call Date: 12/31/96 State #: 6797 FFIEC 034
Vendor ID: D Cert #: 33217 Page RC-2
U.S. TRUST COMPANY OF TEXAS, N.A. Transit #: 11101765
2100 ROSS AVENUE, SUITE 2700
DALLAS, TX 75201
9
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL ---
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise indicated,
report the amount outstanding as of the last business day of the quarter.
SCHEDULE RC - BALANCE SHEET
C100
Dollar Amounts in Thousands
- -------------------------------------------------------------------------------------------------------------------------
ASSETS
1. Cash and balances due from depository institutions: RCON
----
a. Noninterest-bearing balances and currency and coin (1,2) 0081 325 1.a
------------------ ------ -------
b. Interest bearing balances (3) 0071 173 1.b
-------------------------------------------- ------ -------
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 0 2.a
--------------- ------ -------
b. Available-for-sale securities (from Schedule RC-B, column D) 1773 101,385 2.b
-------------- ------ -------
3. Federal funds sold and securities purchased under agreements to resell:
a. Federal funds sold (4) 0276 0 3.a
-------------------------------------------------- ------ -------
b. Securities purchased under agreements to resell (5) 0277 0 3.b
----------------------- ------ -------
4. Loans and lease financing receivables: RCON
----
a. Loans and leases, net of unearned income (from Schedule RC-C) 2122 42,103 4.a
------------
b. LESS: Allowance for loan and lease losses 3123 481 4.b
-------------------------------
c. LESS: Allocated transfer risk reserve 3128 0 4.c
-----------------------------------
d. Loans and leases, net of unearned income, allowance, and reserve RCON
----
(item 4.a minus 4.b and 4.c) 2125 41,622 4.d
--------------------------------------------- ------ -------
5. Trading assets 3545 0 5.
----------------------------------------------------------- ------- -------
6. Premises and fixed assets (including capitalized leases) 2145 753 6.
---------------------- ------ -------
7. Other real estate owned (from Schedule RC-M) 2150 0 7.
------------------------------ ------ -------
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) 2130 0 8.
---------------------------------------------------- ------ -------
9. Customers' liability to this bank on acceptances outstanding 2155 0 9.
------------------ ------ -------
10. Intangible assets (from Schedule RC-M) 2143 0 10.
------------------------------------ ------ -------
11. Other assets (from Schedule RC-F) 2160 1,511 11.
--------------------------------------- ------ -------
12. a. Total assets (sum of items 1 through 11) 2170 145,769 12.a
--------------------------------- ------ -------
b. Losses deferred pursuant to U.S.C. 1823(j) 0306 0 12.b
------------------------------- ------ -------
c. Total assets and losses deferred pursuant to 12 U.S.C. 1823(j)
(sum of items 12.a and 12.b) 0307 145,769 12.c
------------------------------------------- ------ -------
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(1) Includes cash items in process of collection and unposed debits.
(2) The amount reported in this item must be greater than or equal to the
sum of Schedule RC-M, items 3.a and 3.b.
(3) Includes time certificates of deposit not held for trading.
(4) Report 'term federal funds sold' in Schedule RC, item 4.a, 'Loans
and leases, net of unearned income,' and in Schedule RC-C, part 1.
(5) Report securities purchased under agreements to resell that involve
the receipt of immediately available funds and mature in one business
day or roll over under a continuing contract in Schedule RC, item 3.a,
'Federal funds sold.'
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Call Date: State #: 6797 FFIEC 034
Vendor ID: 12/31/96 Cert #: 33217 Page RC-2
U.S. TRUST COMPANY OF TEXAS, N.A. Transit #: D
2100 ROSS AVENUE, SUITE 2700 11101765
DALLAS, TX 75201
10
----
SCHEDULE RC - CONTINUED
Dollar Amounts in Thousands
- ----------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of RCON
----
columns A and C from Schedule RC-E) RCON 2200 118,129 13.a
----------------------------------- ----
(1) Noninterest-bearing (1) 6631 12,669 13.a.1
---------------------------------------------
(2) Interest-bearing
--------------------------------------------------- 6636 105,440
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(1) Noninterest-bearing
-----------------------------------------------
(2) Interest-bearing
--------------------------------------------------
14. Federal funds purchased and securities sold under agreements to repurchase: RCON
----
a. Federal funds purchased (2) 0278 0 14.a
-------------------------------------------- ------ -------
b. Securities sold under agreements to repurchase (3) 0279 0 14.b
-------------------- ------ --------
15. a. Demand notes issued to the U.S. Treasury 2840 0 15.a
------------------------------- ------ -------
b. Trading liabilities 3548 0 15.b
----------------------------------------------------- ------ -------
16. Other borrowed money:
A. WITH A REMAINING MATURITY OF ONE YEAR OR LESS 2332 0 16.a
----------------------- ------ -------
B. WITH A REMAINING MATURITY OF MORE THAN ONE YEAR 2333 6,000 16.b
-------------------- ------ -------
17. Mortgage indebtedness and obligations under capitalized leases 2910 0 17.
--------------- ------ -------
18. Bank's liability on acceptances executed and outstanding 29200 0 18.
-------------------- ------ -------
19. Subordinated notes and debentures 3200 0 19.
---------------------------------------- ------ -------
20. Other liabilities (from Schedule RC-G) 2930 1,575 20.
------------------------------------- ------ -------
21. Total liabilities (sum of items 13 through 20) 2948 125,704 21.
----------------------------- ------ -------
22. Limited-life preferred stock and related surplus 3282 0 22.
----------------------------- ------ -------
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838 7,000 23.
---------------------------- ------ ------
24. Common stock 3230 500 24.
----------------------------------------------------------- ------ ------
25. Surplus (exclude all surplus related to preferred stock) 2829 8,384 25.
----------------------- ------ ------
26. a. Undivided profits and capital reserves 3632 4,045 26.a
------------------------------ ------ ------
b. Net unrealized holding gains (losses) on available-for-sale securities 8434 136 26.b
---- ------ ------
27. Cumulative foreign currency translation adjustments 3210
------------------------ ------ ------
28. a. Total equity capital (sum of items 23 through 27) 3210 20,065 28.a
------------------------- ------ ------
b. Losses deferred pursuant to 12 U.S.C. 1823(j) 0306 0 28.b
---------------------------- ------ ------
c. Total equity capital and losses deferred pursuant to 12 U.S.C. 1823(j)
(sum of items 28.a and 28.b) 3559 20,065 28.c
------------------------------------------- ------ ------
29. Total liabilities, limited-life preferred stock, equity capital, and losses deferred
pursuant to 12 U.S.C. 1823(j) (sum of items 21, 22, and 28.c) 2257 145,769 29.
------------------ ------ ------
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external auditors as RCON
----
of any date during 1995 6724 N/A M.1
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1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company (but external auditors
not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in accordance work)
with generally accepted auditing standards by a certified 8 = No external audit work
public accounting firm (may be required by state chartering
authority)
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
(2) Report "term federal funds purchased" in Schedule RC, item 16, 'Other borrowed money.'
(3) Report securities sold under agreements to repurchase that involve the receipt of immediately available funds and
mature in one business day or roll over under a continuing contract in Schedule RC, item 14.a, 'Federal funds
purchased.'
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