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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1997
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____to_____
Commission file number: 0-7062
NOBLE AFFILIATES, INC.
(Exact name of registrant as specified in its charter)
Delaware 73-0785597
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
110 West Broadway 73401
Ardmore, Oklahoma (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
(405) 223-4110
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
----- -----
Number of shares of common stock outstanding as of April 29, 1997: 56,869,308
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
NOBLE AFFILIATES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEET
(Dollars in thousands)
(Unaudited)
March 31, December 31,
1997 1996
----------- -----------
ASSETS
Current Assets:
Cash and short-term cash investments........... $ 199,048 $ 94,768
Accounts receivable-trade...................... 141,562 206,151
Materials and supplies inventories............. 2,721 4,489
Other current assets........................... 9,203 11,395
----------- -----------
Total Current Assets........................... 352,534 316,803
----------- -----------
Property, Plant and Equipment...................... 2,634,010 2,571,964
Less: accumulated depreciation,
depletion and amortization................... (1,074,494) (1,000,200)
----------- -----------
1,559,516 1,571,764
----------- -----------
Other Assets....................................... 66,194 68,371
----------- -----------
Total Assets.................................... $ 1,978,244 $ 1,956,938
----------- -----------
----------- -----------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable-trade........................... $ 108,355 $ 143,408
Other current liabilities........................ 73,337 75,736
Current installments of long-term debt........... 50,000 50,000
Income taxes-current............................. 13,646 10,662
----------- -----------
Total Current Liabilities........................ 245,338 279,806
----------- -----------
Deferred Income Taxes.............................. 121,867 108,434
----------- -----------
Other Deferred Credits and Noncurrent Liabilities.. 55,339 50,603
----------- -----------
Long-term Debt..................................... 798,038 798,028
----------- -----------
Shareholders' Equity:
Common stock..................................... 194,595 194,402
Capital in excess of par value................... 356,963 355,651
Retained earnings................................ 221,522 185,432
----------- -----------
773,080 735,485
Less common stock in treasury
(at cost, 1,524,900 shares)...................... (15,418) (15,418)
----------- -----------
Total Shareholders' Equity....................... 757,662 720,067
----------- -----------
Total Liabilities and Shareholders' Equity....... $ 1,978,244 $ 1,956,938
----------- -----------
----------- -----------
SEE NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS.
2
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NOBLE AFFILIATES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENT OF OPERATIONS
(Dollars in Thousands, Except Per Share Amounts)
(Unaudited)
Three Months Ended March 31,
---------------------------
1997 1996
--------- ---------
REVENUES:
Oil and gas sales and royalties . . . . . . . $ 219,322 $ 108,415
Gathering, marketing and processing . . . . . 100,110 58,801
Other income. . . . . . . . . . . . . . . . . 3,023 3,207
--------- ---------
322,455 170,423
--------- ---------
COSTS AND EXPENSES:
Oil and gas exploration . . . . . . . . . . . 19,605 7,558
Oil and gas operations. . . . . . . . . . . . 43,517 22,530
Gathering, marketing and processing . . . . . 94,801 52,114
Depreciation, depletion and amortization. . . 77,720 38,139
Selling, general and administrative . . . . . 12,187 9,672
Interest. . . . . . . . . . . . . . . . . . . 14,284 5,348
Interest capitalized. . . . . . . . . . . . . (713) (565)
--------- ---------
261,401 134,796
--------- ---------
INCOME BEFORE TAXES. . . . . . . . . . . . . . . 61,054 35,627
INCOME TAX PROVISION . . . . . . . . . . . . . . 22,691(1) 12,948(1)
--------- ---------
NET INCOME . . . . . . . . . . . . . . . . . . . $ 38,363 $ 22,679
--------- ---------
--------- ---------
PRIMARY EARNINGS PER SHARE . . . . . . . . . . . $ .67(2) $ .45(2)
--------- ---------
--------- ---------
FULLY DILUTED EARNINGS PER SHARE . . . . . . . . $ .67(3) $ .43(3)
--------- ---------
--------- ---------
SEE NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS.
3
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NOBLE AFFILIATES, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENT OF CASH FLOWS
(Dollars in Thousands)
(Unaudited)
<TABLE>
Three Months Ended March 31,
---------------------------
1997 1996
-------- --------
<S> <C> <C>
Cash Flows from Operating Activities:
Net income. . . . . . . . . . . . . . . . . . . . . . . . . . . $ 38,363 $ 22,679
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation, depletion and amortization. . . . . . . . . . . 77,720 38,139
Amortization of undeveloped lease costs, net. . . . . . . . . 1,087 2,915
Increase in other deferred credits. . . . . . . . . . . . . . 18,169 2,017
(Increase) decrease in other. . . . . . . . . . . . . . . . . 4,746 (2,390)
Changes in working capital, not including cash:
(Increase) decrease in accounts receivable. . . . . . . . . . 64,588 (12,904)
(Increase) decrease in other current assets and inventories . 3,934 9,669
Increase (decrease) in accounts payable . . . . . . . . . . . (35,053) 9,619
Increase (decrease) in other current liabilities. . . . . . . 584 14,481
-------- --------
Net Cash Provided by Operating Activities . . . . . . . . . . . . 174,138 84,225
-------- --------
Cash Flows From Investing Activities:
Capital expenditures. . . . . . . . . . . . . . . . . . . . . . (69,361) (60,583)
Proceeds from sale of property, plant and equipment . . . . . . 271 2,637
-------- --------
Net Cash Used in Investing Activities . . . . . . . . . . . . . . (69,090) (57,946)
-------- --------
Cash Flows From Financing Activities:
Exercise of stock options . . . . . . . . . . . . . . . . . . . 1,506 2,060
Cash dividends. . . . . . . . . . . . . . . . . . . . . . . . . (2,274) (2,010)
-------- --------
Net Cash Provided by (Used in) Financing Activities . . . . . . . (768) 50
-------- --------
Increase in Cash and Short-term Cash Investments. . . . . . . . . 104,280 26,329
-------- --------
Cash and Short-term Cash Investments at Beginning of Period . . . 94,768 12,429
-------- --------
Cash and Short-term Cash Investments at End of Period . . . . . . $199,048 $ 38,758
-------- --------
-------- --------
Supplemental Disclosures of Cash Flow Information:
Cash paid during the period for:
Interest (net of amount capitalized). . . . . . . . . . . . . . $ 14,806 $ 278
Income taxes. . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,750
</TABLE>
SEE NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS.
4
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NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
In the opinion of Noble Affiliates, Inc. (the Company), the accompanying
unaudited consolidated condensed financial statements contain all adjustments,
consisting only of necessary and normal recurring adjustments, necessary to
present fairly the Company's financial position as of March 31, 1997 and
December 31, 1996, and the results of operations and the cash flows for the
three month periods ended March 31, 1997 and 1996. These consolidated condensed
financial statements should be read in conjunction with the consolidated
financial statements and the notes thereto incorporated in the Company's annual
report on Form 10-K for the year ended December 31, 1996.
(1) INCOME TAX PROVISION
For the three months ended March 31:
(In thousands)
-------------------
1997 1996
------- -------
Current.................................... $ 9,257 $ 9,210
Deferred................................... 13,434 3,738
------- -------
$22,691 $12,948
------- -------
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(2) PRIMARY EARNINGS PER SHARE
The primary earnings per share of common stock was computed using the
weighted average number of shares of common stock outstanding during the period
as follows:
(In thousands)
------------------
1997 1996
------ ------
For the three months ended March 31............. 56,841 50,273
(3) FULLY DILUTED EARNINGS PER SHARE
The fully diluted earnings per share of common stock for the first quarter
of 1996 was computed using the "if converted method", assuming the Company's
convertible debt was converted into additional outstanding shares of common
stock at the beginning of the period. For the three months ended March 31, 1996,
the weighted average number of shares of common stock outstanding using the if
converted method was 56,911,145 and the increase in income related to the
assumed reduction in after tax interest expense was $1,564,000. There was no
dilution of earnings per share in the first quarter of 1997.
The Financial Accounting Standards Board issued Statements of Financial
Accounting Standards No. 128 "Earnings per Share" and No. 129 "Disclosure of
Information about Capital Structure" in March 1997. Both statements are
effective for financial statements for both interim and annual periods ending
after December 15, 1997. The Company believes that its adoption of these
statements at December 31, 1997 will not have a material effect on its financial
statements.
(4) MINERALS MANAGEMENT SERVICE CLAIMS
Over the past several years, Samedan Oil Corporation (Samedan), a wholly
owned subsidiary of the Company, has settled various claims which it had against
parties who had contracted to purchase gas at fixed prices which were greater
than market, or who had take-or-pay contracts with Samedan in which such
obligations to take-or-pay for quantities of gas were not fulfilled. It is the
Company's policy, which is consistent with general industry practice, that such
payments do not represent payment for gas produced and therefore, are not
subject to royalty payments. The federal government, with respect to leases on
both onshore and offshore federal lands, certain other governmental bodies, and
some private landowners have begun to assert claims in recent years against oil
and gas companies for royalties on some or all of such settlement amounts.
The Company participated in a joint effort with the Independent Petroleum
Association of America wherein Samedan was a party to a test case involving such
a claim made with respect to a lease on Indian lands. In the U.S.
5
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District Court for the District of Columbia, Samedan and other plaintiffs
challenged the determination by the U.S. Minerals Management Service (MMS)
that royalties were payable to the government on certain proceeds received by
Samedan (and the other plaintiffs) with respect to a contract settlement. The
U.S. District Court ruled in favor of the MMS, and a judgment in the amount of
$20,000 was awarded against Samedan. Samedan appealed this judgment, and on
August 27, 1996, the U.S. Court of Appeals for the District of Columbia
Circuit overturned the U.S. District Court's decision. The appeals court
decision ordered the MMS to cease its efforts to collect royalty from Samedan
for any contract settlement that was not recoupable and in February 1997 the
U.S. Department of Justice announced that it would not seek Supreme Court
action to overturn the decision (the "Samedan Lawsuit").
Although the outcome in the Samedan Lawsuit was favorable to the Company,
there are other lawsuits pending involving similar claims for royalties from oil
and gas companies. A recent decision in the U.S. Court of Appeals for the Sixth
Circuit reached a conclusion that contradicts the holding in the Samedan
Lawsuit. There can be no assurance that Samedan will prevail in the future on
any similar claims which may be asserted against it based on other take-or-pay
or contract settlements. The Company is unable at this time to estimate the
possible amount of the loss, if any, associated with this contingency.
(5) SUBSEQUENT EVENT
The Company issued $250,000,000 of 8% Senior Notes Due 2027 on April 7,
1997. Net proceeds of the issuance together with $104 million of available cash
were used to repay the outstanding principal of $349 million plus accrued
interest under the term loan under the Company's credit agreement. Total long-
term debt (including current installments) as of April 21, 1997 was $746
million.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This report on Form 10-Q includes "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. All statements other
than statements of historical fact included in this Form 10-Q, including,
without limitation, statements contained under "Management's Discussion and
Analysis of Financial Condition and Results of Operations" regarding the
Company's financial position, 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 quarterly report on Form 10-Q 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.
LIQUIDITY AND CAPITAL RESOURCES
Net cash provided by operating activities increased to $174.1 million in
the three months ended March 31, 1997 from $84.2 million in the same period of
1996. Cash and short-term cash investments increased from $94.8 million at
December 31, 1996 to $199.0 million at March 31, 1997.
The Company issued $250,000,000 of 8% Senior Notes Due 2027 on April 7,
1997. Net proceeds of the issuance together with $104 million of available cash
were used to repay the outstanding principal of $349 million plus accrued
interest under the term loan under the Company's credit agreement. Total long-
term debt (including current installments) as of April 21, 1997 was $746
million.
The Company has expended approximately $70 million of its $344.5 million
1997 capital budget through March 31, 1997. The Company expects to fund its
remaining 1997 capital budget through cash flows from operations. The
6
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Company's 1997 capital budget includes approximately $4.2 million for
acquisitions of producing properties. The Company continues to evaluate
possible strategic acquisitions and believes it is positioned to access
external sources of funding should it be necessary or desirable in connection
with an acquisition.
The Company's current ratio (current assets divided by current liabilities)
was 1.44 at March 31, 1997 compared with 1.13 at December 31, 1996.
The Company follows an entitlements method of accounting for its gas
imbalances. The Company's estimated gas imbalance receivables were $19.2 million
at March 31, 1997 and $19.3 million at December 31, 1996. Estimated gas
imbalance liabilities were $24.3 million at March 31, 1997 and $21.7 million at
December 31, 1996. These imbalances are valued at the amount which is expected
to be received or paid to settle the imbalances. The settlement of the
imbalances can occur either over the life or at the end of the life of a well,
on a volume basis or by cash settlement. The Company does not expect that a
significant portion of the settlements will occur in any one year. Thus, the
Company believes the settlement of gas imbalances will not have a material
impact on its liquidity.
RESULTS OF OPERATIONS
For the first quarter of 1997, the Company recorded net income of $38.4
million, or $.67 per share, compared with net income of $22.7 million, or $.45
per share, in the first quarter of 1996. The increase resulted primarily from
increased oil and gas production and higher product prices.
Gas sales for the Company, excluding third party sales by NGM, increased
134 percent for the three months ended March 31, 1997 compared with the same
period in 1996. The primary reasons for the increased sales were an increase in
average gas price of 28 percent, coupled with an average daily production
increase of 85 percent in the 1997 first quarter, compared with the prior year
first quarter. The substantial increase in average daily production was
primarily due to the Company's acquisition of Energy Development Corporation
("EDC") on July 31, 1996 (the "EDC Acquisition") and new properties coming on
line in the later part of 1996, primarily in the Gulf of Mexico.
Oil sales increased 56 percent for the three months ended March 31, 1997,
compared with the same period in 1996. The increase in sales is primarily due to
an average oil price increase of 13 percent, and an average daily production
increase of 40 percent in the first quarter of 1997, compared with the first
quarter of 1996. The increase in average daily production was a result of both
the EDC Acquisition and new properties, primarily in the Gulf of Mexico, coming
on line in the fourth quarter of 1996.
Noble Gas Marketing, Inc. ("NGM"), a wholly owned subsidiary of the
Company, markets the Company's natural gas as well as certain third party gas.
NGM sells gas directly to end-users, gas marketers, industrial users, interstate
and intrastate pipelines, and local distribution companies. Noble Trading, Inc.
("NTI"), a wholly owned subsidiary of the Company, markets a portion of the
Company's oil as well as certain third party oil. The Company records all NGM's
and NTI's sales as gathering, marketing and processing revenues and expenses.
All intercompany sales and expenses have been eliminated.
For the first quarter of 1997, revenues and expenses from combined NGM and
NTI third party sales totaled $100.1 million and $94.8 million, respectively,
for a gross margin of $5.3 million. In comparison, combined NGM and NTI third
party sales and expenses of $58.8 million and $52.1 million, respectively,
resulted in a gross margin of $6.7 million for the first quarter of 1996. The
greater margin in the 1996 first quarter, as compared to the 1997 first quarter,
was due primarily to the Company's capacity and ability to deliver gas to
Northern markets during a colder than normal winter.
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 NGM 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 risk, the Company monitors the
creditworthiness of its counterparties, which generally are major institutions,
and believes that losses from nonperformance are unlikely to occur.
During the first quarter of 1997, the Company had natural gas hedging
contracts that hedged approximately 27 percent of its average daily production.
The net effect of these hedges was a $.23 per MCF reduction in the average
natural gas price for the first quarter. Hedges for April 1997 through December
1997, which average approximately 19 percent of the Company's estimated average
daily natural gas production, were not closed at March 31, 1997. The Company
also had various crude oil hedging contracts that hedged approximately 46
percent of its average daily production. The
7
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net effect of these hedges was a $.63 per BBL reduction in the average crude
oil price for the first quarter. Hedges for April 1997 through December 1997,
which average approximately 18 percent of the Company's estimated average
daily crude oil production, were not closed at March 31, 1997.
In addition to the hedging arrangements pertaining to the Company's
production, as described above, NGM employs various hedging arrangements in
connection with its purchases and sales of third party production to lock in
profits or limit exposure to gas price risk. Most of the purchases made by NGM
are on an index basis; however, purchasers in the markets in which NGM sells
often require fixed or NYMEX related pricing. NGM may use a hedge to convert the
fixed or NYMEX sale to an index basis thereby determining the margin and
minimizing the risk of price volatility. During the first quarter of 1997, NGM
had hedging transactions with broker-dealers that represented approximately
679,000 MMBTU of gas per day. Hedges for April 1997 through March 1998, which
range from 7,475 MMBTU's to 16,169 MMBTU's of gas per day for future physical
transactions, were not closed at March 31, 1997. During the first quarter of
1996, NGM had hedging transactions with broker-dealers that represented
approximately 285,000 MMBTU of gas per day at prices ranging from $1.68 to $4.56
per MMBTU. NGM records hedging gains or losses relating to fixed term sales as
gathering, marketing and processing revenues in the periods in which the related
contract is completed.
Certain selected oil and gas operating statistics follow:
For the three months
ended March 31,
---------------------
1997 1996
-------- --------
Oil revenue (in thousands)........................ $ 69,297 $ 44,313
Average daily oil production - BBLS............... 39,604 28,318
Average oil price per BBL......................... $ 19.93 $ 17.59
Gas revenues (in thousands)....................... $144,635 $ 61,801
Average daily gas production - MCFS............... 612,185 330,520
Average gas price per MCF......................... $ 2.69 $ 2.10
BBLS - BARRELS
MCF - THOUSAND CUBIC FEET
Oil and gas exploration expense increased $12.0 million to $19.6 million
for the three months ended March 31, 1997, as compared with the same period of
1996. This increase is primarily attributable to a $10.0 million increase in dry
hole expense and a $2.7 million increase in abandoned assets as compared to the
same period of 1996.
Depreciation, depletion and amortization (DD&A) expense increased 104
percent for the three months ended March 31, 1997 compared with the same period
in 1996. The unit rate of DD&A per barrel of oil equivalents (BOE), converting
gas to oil on the basis of 6 MCF per barrel, was $6.10 for the first three
months of 1997 compared with $5.02 for the same period of 1996. The increase in
the unit rate per BOE is due to the purchase price allocation to the properties
obtained in the EDC Acquisition which averaged $7.83 per BOE for the first
quarter of 1997, compared with Samedan's properties which averaged $5.56 per
BOE. The Company has recorded, through charges to DD&A, a reserve for future
liabilities related to dismantlement and reclamation costs for offshore
facilities. This reserve is based on the best estimates of Company engineers of
such costs to be incurred in future years.
Interest capitalized increased to $.7 million for the first quarter of 1997
from $.6 million for the first quarter of 1996. This increase resulted from
increased construction projects for various properties of the Company located in
the Gulf of Mexico.
8
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FUTURE TRENDS
Over the past several years, Samedan has settled various claims which it
had against parties who had contracted to purchase gas at fixed prices which
were greater than market, or who had take-or-pay contracts with Samedan in which
such obligations to take-or-pay for quantities of gas were not fulfilled. It is
the Company's policy, which is consistent with general industry practice, that
such payments do not represent payment for gas produced and therefore, are not
subject to royalty payments. The federal government, with respect to leases on
both onshore and offshore federal lands, certain other governmental bodies, and
some private landowners have begun to assert claims in recent years against oil
and gas companies for royalties on some or all of such settlement amounts.
The Company participated in a joint effort with the Independent Petroleum
Association of America wherein Samedan was a party to a test case involving such
a claim made with respect to a lease on Indian lands. In the U.S. District Court
for the District of Columbia, Samedan and other plaintiffs challenged the
determination by the U.S. Minerals Management Service (MMS) that royalties were
payable to the government on certain proceeds received by Samedan (and the other
plaintiffs) with respect to a contract settlement. The district court ruled in
favor of the MMS, and a judgment in the amount of $20,000 was awarded against
Samedan. Samedan appealed this judgment, and on August 27, 1996, the U.S. Court
of Appeals for the District of Columbia overturned the U.S. District Court's
decision. The appeals court decision ordered the MMS to cease its efforts to
collect royalty from Samedan for any contract settlement that was not recoupable
and in February 1997 the U.S. Department of Justice announced that it would not
seek Supreme Court action to overturn the decision.
Although the amount in controversy applicable to Samedan in the above
described lawsuit is not material, the decision in such case could have a
negative impact with respect to other take-or-pay or contract settlements
entered into by Samedan. There has also been a recent decision in the U.S. Court
of Appeals for the Sixth Circuit which contradicts the Samedan case. There can
be no assurance that Samedan will prevail in the future on any similar claims
asserted against it based on other take-or-pay or contract settlements. The
Company is unable at this time to estimate the possible amount of the loss, if
any, associated with this contingency.
Management believes the Company is well positioned with its balanced
reserves of oil and gas to take advantage of future price increases that may
occur. However, the uncertainty of oil and gas prices continues to affect the
domestic oil and gas industry. Due to the volatility of oil and gas prices, the
Company, from time to time, uses hedging and plans to do so in the future as a
means of controlling its exposure to price changes. The Company cannot predict
the extent to which its revenues will be affected by inflation, government
regulation or changing prices.
9
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PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The annual meeting of stockholders of the Company was held at 10:00 a.m.,
local time, on Tuesday, April 22, 1997 in Ardmore, Oklahoma.
(b) Proxies were solicited by the Board of Directors of the Company pursuant to
Regulation 14A under the Securities Exchange Act of 1934. There was no
solicitation in opposition to the Board of Directors' nominees as listed in
the proxy statement and all such nominees were duly elected.
(c) Out of a total of 56,854,308 shares of common stock of the Company
outstanding and entitled to vote, 50,794,684 shares were present in person
or by proxy, representing approximately 89 percent.
Number of Shares
WITHHOLDING
Number of Shares AUTHORITY
Voting FOR Election to Vote for Election
As Director As Director
------------------- --------------------
Alan A. Baker..................... 48,614,145 2,180,539
Michael A. Cawley................. 48,639,589 2,155,095
Edward F. Cox..................... 48,644,189 2,150,495
James C. Day...................... 48,634,279 2,160,405
Robert Kelley..................... 48,640,943 2,153,471
Harold F. Kleinman................ 47,986,875 2,807,809
George J. McLeod.................. 48,629,107 2,165,577
(d) Other matters voted on by the shareholders, as fully described in the proxy
statement for the annual meeting, and results of the voting, are as
follows:
1. Stockholders adopted a resolution to approve and ratify the Company's
1992 Stock Option and Restricted Stock Plan, as amended and restated.
(For 36,047,409; Against 14,512,748; Abstain 234,527)
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The information required by this Item 6(a) is set forth in the Index to
Exhibits accompanying this quarterly report on Form 10-Q and is
incorporated herein by reference.
(b) The Company did not file any reports on Form 8-K during the three months
ended March 31, 1997.
10
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NOBLE AFFILIATES, INC.
(Registrant)
Date: May 15, 1997 By: /s/ WILLIAM D. DICKSON
---------------------------------
William D. Dickson,
Vice President-Finance and Treasurer
(Principal Financial Officer
and Authorized Signatory)
11
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- -----------------------------------------------------------
2.1 Stock Purchase Agreement dated as of July 1, 1996, between
Samedan Oil Corporation and Enterprise Diversified Holdings
Incorporated (filed as Exhibit 2.1 to the Registrant's
Current Report on Form 8-K (Date of Event: July 31, 1996),
filed on August 13, 1996 and incorporated herein by
reference).
3.1 Certificate of Incorporation, as amended, of the Registrant
as currently in effect (filed as Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1987 and incorporated herein by reference).
3.2 Composite copy of Bylaws of the Registrant as currently in
effect (filed as Exhibit 3.2 to the Registrant's Annual
Report on Form 10-K for the year ended December 31, 1992 and
incorporated herein by reference).
4.1 Indenture relating to Senior Debt Securities dated as of
April 1, 1997 between the Registrant and the U.S. Trust
Company of Texas, N.A., as Trustee.
4.2 First Indenture Supplement relating to $250,000,000 of the
Registrant's 8% Senior Notes Due 2027 dated as of April 1,
1997 between the Registrant and U.S. Trust Company of Texas,
N.A., as Trustee.
27.1 Financial Data Schedule
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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,
<PAGE>
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
(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
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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.
"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
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(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.
"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.
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"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 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
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(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 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.
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"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.
"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
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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
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".
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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:
(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
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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 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
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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 set any day as a record date for the purpose of
determining the holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by holders of Securities of such series, PROVIDED that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the holders of Outstanding
Securities of the relevant series on such record date, and no other holders,
shall be entitled to take the relevant action, whether or not such holders
remain holders after such record date; PROVIDED that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by holders and the applicable Expiration Date to be given to the
Trustee in writing and to each holder of Securities of the relevant series in
the manner set forth in Section 106.
(g) The Trustee may set any day as a record date for the purpose of
determining the holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the holders of Outstanding
Securities of such series on such record date, and no other holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such holders remain holders after such record date; PROVIDED that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee
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from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by holders and the applicable Expiration
Date to be given to the Company in writing and to each holder of Securities
of the relevant series in the manner set forth in Section 106.
(h) With respect to any record date set pursuant to this Section, the
party hereto which sets such record dates may designate any day the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; PROVIDED that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(i) 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 the 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.
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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 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.
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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.
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.
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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.
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.
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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 _______________________________________
_________________________________ 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.
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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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
NOBLE AFFILIATES, INC.
By:
----------------------------
Attest:
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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.]
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[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
---------- ----------
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.
If 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.
[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.]
If 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.
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[IF APPLICABLE, INSERT THE FOLLOWING PARAGRAPH.]
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.
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 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 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 hereof 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 not less than 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
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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.
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 the Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of,
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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.
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.
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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
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Securities Exchange Act of 1934, as amended.
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;
(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;
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(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) if other than the currency of the United States of America, 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;
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(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;
(r) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee or
the requisite holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;
(s) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and
(t) 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 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
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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 any 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 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
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(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 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. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for the
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
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
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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 Bank, societe anonyme ("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
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
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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 [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
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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 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
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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.
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.
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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 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
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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:
(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
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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
or 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
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promptly notify the Trustee of any change in the CUSIP number.
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
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such Securities and coupons appertaining thereto, if any, not
theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest 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 or which has expressly been included
in this Indenture solely for the benefit of a series of Securities other
than that series), 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
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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 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;
(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;
or
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding 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,
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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.
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.
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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,
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,
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(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;
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; PROVIDED, HOWEVER, that the Trustee
may, on behalf of the holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors' or other similar committee.
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:
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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.
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.
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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
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
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(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.
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
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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 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.
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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 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.
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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.
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.
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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. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series or a trustee under the Indenture
dated as of October 4, 1993 relating to the Company's 7-1/4% Notes Due 2023. 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 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.
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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 with respect to the Securities
of one or more series 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 with respect to the Securities of such
series.
(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
(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 with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more
or all of such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If,
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within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the holders and accepted appointed in the manner required by
Section 611, any holder who has been a bona fide holder of a Security of such
series for at least six months may, on behalf of himself and all other
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect
to the Securities of such series and the address of its Corporate Trust Office.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, 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.
In the case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
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retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental indenture the resignation
or removal of the retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates; but,
on request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
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 referred to in the
first or second preceding paragraphs, as the case may be.
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).
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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 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.
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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
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.
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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 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.
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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 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 PERSON 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
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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 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 for the benefit of the
holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); 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 neither (i) apply to any
Security and coupons appertaining thereto, if any, of any series created
prior to the execution of such supplemental indenture and
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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.
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
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(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; PROVIDED, HOWEVER, that this clause shall not be deemed to require
the consent of any holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902 and Article Ten, or
the deletion of this proviso, in accordance with the requirements of
Sections 611 and 901(8).
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 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.
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Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every holder
of 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.
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
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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 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
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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.
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) during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in making of any payment
in respect of the Securities of that series, upon the written request of
the Trustee, forthwith pay to the Trustee all sums held in trust by such
Paying Agent for payment in respect of the Securities of that series.
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
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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 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;
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(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 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
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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
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
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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 deducted; 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.
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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 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
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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 (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.
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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 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.
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
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<PAGE>
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 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
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<PAGE>
Company is a party or by which it is bound.
(h) 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 registered under such Act or exempt from registration
thereunder.
(i) 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.
(j) 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 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.
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<PAGE>
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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<PAGE>
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:
----------------------------------
Robert Kelley,
President & Chief Executive Officer
Attest:
- --------------------------
William D. Dickson,
Assistant Secretary
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
[CORPORATE SEAL] By:
----------------------------------
Bill Barber,
Vice President
Attest:
- --------------------------
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<PAGE>
STATE OF OKLAHOMA )
)
COUNTY OF CARTER )
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 TEXAS )
)
COUNTY OF DALLAS )
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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<PAGE>
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>
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.
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<PAGE>
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
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<PAGE>
any notification from any of our Member Organizations to the effect that the
statements made 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 interested 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:
-----------------------------
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<PAGE>
--------------------------------
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>
TIE-SHEET
Noble Affiliates, Inc.
Reconciliation and tie between Trust Indenture
Act of 1939, as amended and
Indenture, dated as of April 1, 1997
Trust Indenture
Act Section Indenture Section
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
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<PAGE>
(c)........................................ 601
(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
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
-ii-
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY............................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION............................................. 1
Section 101. Definitions...................................... 1
Act.............................................. 2
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
-iii-
<PAGE>
Page
----
Original Issue Discount Security................. 5
Outstanding...................................... 5
Paying Agent..................................... 6
Permanent Global Securities...................... 6
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
Restricted Subsidiary............................ 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
Subsidiary....................................... 8
Trust Indenture Act.............................. 8
Trustee.......................................... 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........................ 12
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....................................... 14
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<PAGE>
Page
----
ARTICLE TWO
SECURITY FORMS..................................................... 15
Section 201. Forms Generally.................................. 15
Section 202. Form of Face of Registered Security.............. 15
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
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....................................... 39
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.......................... 40
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
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Page
----
Section 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest................. 43
Section 509. Restoration of Rights and Remedies............... 43
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.......... 45
ARTICLE SIX
THE TRUSTEE........................................................ 45
Section 601. Certain Duties and Responsibilities.............. 45
Section 602. Notice of Defaults............................... 45
Section 603. Certain Rights of Trustee........................ 46
Section 604. Not Responsible for Recitals or Issuance of
Securities...................................... 47
Section 605. May Hold Securities.............................. 47
Section 606. Money Held in Trust.............................. 47
Section 607. Compensation and Reimbursement................... 47
Section 608. Disqualification; Conflicting Interests.......... 48
Section 609. Corporate Trustee Required; Eligibility.......... 48
Section 610. Resignation and Removal; Appointment of
Successor....................................... 49
Section 611. Acceptance of Appointment by Successor........... 50
Section 612. Merger, Conversion, Consolidation or
Succession to Business.......................... 51
Section 613. Preferential Collection of Claims Against
Company......................................... 51
Section 614. Appointment of Authenticating Agent.............. 52
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY............................................. 53
Section 701. Company to Furnish Trustee Names and
Addresses of Holders............................ 53
Section 702. Preservation of Information; Communications
To Holders...................................... 54
Section 703. Reports by Trustee............................... 54
Section 704. Reports by Company............................... 54
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Page
----
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE.................................................. 55
Section 801. Company May Consolidate, Etc., Only on
Certain Terms................................... 55
Section 802. Successor Person Substituted..................... 55
ARTICLE NINE
SUPPLEMENTAL INDENTURES............................................ 56
Section 901. Supplemental Indentures Without Consent of
Holders......................................... 56
Section 902. Supplemental Indentures With Consent of
Holders......................................... 57
Section 903. Execution of Supplemental Indentures............. 58
Section 904. Effect of Supplemental Indentures................ 58
Section 905. Conformity with Trust Indenture Act.............. 59
Section 906. Reference in Securities to Supplemental
Indentures...................................... 59
ARTICLE TEN
COVENANTS.......................................................... 59
Section 1001. Payment of Principal, Premium and Interest....... 59
Section 1002. Maintenance of Office or Agency.................. 59
Section 1003. Money for Security Payments to Be Held in
Trust........................................... 61
Section 1004. Limitation on Liens.............................. 62
Section 1005. Restrictions on Sales and Leasebacks............. 64
Section 1006. Statement by Officers as to Default.............. 64
Section 1007. Waiver of Certain Covenants...................... 65
ARTICLE ELEVEN
REDEMPTION OF SECURITIES............................................ 65
Section 1101. Applicability of Article......................... 65
Section 1102. Election to Redeem; Notice to Trustee............ 65
Section 1103. Selection by Trustee of Securities to Be
Redeemed....................................... 66
Section 1104. Notice of Redemption............................. 66
Section 1105. Deposit of Redemption Price...................... 67
Section 1106. Securities Payable on Redemption Date............ 67
Section 1107. Securities Redeemed in Part...................... 68
Section 1108. Purchase of Securities........................... 68
Section 1109. Effect of Notice of Redemption................... 69
-vii-
<PAGE>
Page
----
ARTICLE TWELVE
SINKING FUNDS....................................................... 69
Section 1201. Applicability of Article......................... 69
Section 1202. Satisfaction of Sinking Fund Payments with
Securities...................................... 69
Section 1203. Redemption of Securities for Sinking Fund........ 69
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE.................................. 70
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance............................. 70
Section 1302. Defeasance and Discharge......................... 70
Section 1303. Covenant Defeasance.............................. 71
Section 1304. Conditions to Defeasance or Covenant
Defeasance...................................... 71
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions........................ 73
Section 1306. Reinstatement.................................... 73
-viii-
<PAGE>
NOBLE AFFILIATES, INC.
as Issuer
TO
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee
First Indenture Supplement
Dated as of April 2, 1997
to
INDENTURE
Dated as of April 1, 1997
$250,000,000
8% Senior Notes Due 2027
<PAGE>
FIRST INDENTURE SUPPLEMENT
FIRST INDENTURE SUPPLEMENT (the "First Indenture Supplement"), dated as of
April 2, 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 8% Senior Notes Due 2027 in the form attached
hereto in the aggregate principal amount of $250,000,000 (the "Senior 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 (the "Senior Debt Securities").
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 Senior 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
Senior 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 Senior 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.
SECTION 1.2. Unless the context otherwise requires, the terms defined in
this First
-1-
<PAGE>
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 Senior 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 Senior Notes and the Senior Notes
will not be subject to any Sinking Fund payments.
SECTION 2.3. Articles Ten and Thirteen of the Indenture shall be
applicable in their entirety to the Senior Notes.
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
-2-
<PAGE>
Supplement are inserted for convenience only and shall not affect the
construction hereof.
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.]
-3-
<PAGE>
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:
-------------------------------------
Robert Kelley,
President and Chief Executive Officer
ATTEST:
- --------------------------
William D. Dickson,
Assistant Secretary
U.S. TRUST COMPANY OF TEXAS, N.A.
[SEAL]
By:
-------------------------------------
Bill Barber,
Vice President
ATTEST:
- --------------------------
Name: --------------------
Title:--------------------
<PAGE>
STATE OF TEXAS )
)
COUNTY OF DALLAS )
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 )
)
COUNTY OF DALLAS )
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 U.S. TRUST COMPANY OF TEXAS, N.A., a national
banking association, and that they 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
<PAGE>
FORM OF DEBT SECURITIES
(NOTE)
This Senior Note is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
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.
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to issuer or
its agent for registration of transfer, exchange or payment and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
NOBLE AFFILIATES, INC.
REGISTERED PRINCIPAL AMOUNT
No: 1 $250,000,000
CUSIP: __________
8% SENIOR 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 MILLION AND NO/100 DOLLARS on April 1, 2027 ("Stated Maturity"),
and to pay interest thereon from April 7, 1997, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semiannually
on April 1 and October 1, in each year (each, an "Interest Payment Date"),
commencing October 1, 1997, at the rate of 8% per annum, until the principal
hereof is paid or made available for payment. Interest on the Senior Notes
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 Senior Note (or one or more Predecessor Securities) is
-1-
<PAGE>
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 15 or September 15 (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 Senior 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 Senior 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 interest on this Senior 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 Senior Note is a Global
Security and is held in book-entry form through the facilities of the
Depositary, payments on this Senior 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 Senior Note set
forth on the reverse 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>
NOBLE AFFILIATES, INC.
8% Senior Note Due 2027
This Senior Note is one of a duly authorized issue of Securities of the
Company designated as its 8% Senior Notes Due 2027 (herein called the "Senior
Notes"), limited in aggregate principal amount to $250,000,000, 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 Senior
Notes and of the terms upon which the Senior Notes are, and are to be,
authenticated and delivered.
The Senior Notes are not subject to redemption prior to maturity and no
sinking fund is provided for the Senior Notes.
If an Event of Default with respect to the Senior Notes shall occur and be
continuing, the principal of the Senior Notes 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 the Senior Notes or (B) certain restrictive covenants and
Events of Default with respect to the Senior Notes, in each case upon compliance
with certain conditions set forth 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 Senior Notes under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Senior Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Senior Notes at the
time Outstanding, on behalf of the Holders of all the Senior 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 Senior Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Senior Note and of any Senior
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 Senior Note.
The Indenture provides that no Holder of any Senior 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 not less than 25
percent in principal amount of the Outstanding Senior 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 Senior
Note after the same shall have become due.
-3-
<PAGE>
No reference herein to the Indenture and no provision of this Senior 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 interest on this
Senior Note 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 Senior Note is registrable in the Security Register,
upon surrender of this Senior 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 Senior Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Senior 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, Senior Notes are
exchangeable for a like aggregate principal amount of Senior 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 Senior 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 Senior Note is registered as the owner hereof for
all purposes, whether or not this Senior Note be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Senior 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>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: April 7, 1997
NOBLE AFFILIATES, INC.
By:
-------------------------------------
Robert Kelley,
President and Chief Executive Officer
Attest:
- ------------------------------
William D. Dickson,
Assistant Secretary
<PAGE>
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 Senior Note, hereby irrevocably constituting and appointing ________
_______________ attorney to transfer the said Senior 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 Senior 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.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 199,048
<SECURITIES> 0
<RECEIVABLES> 141,562
<ALLOWANCES> 0
<INVENTORY> 2,721
<CURRENT-ASSETS> 352,534
<PP&E> 2,634,010
<DEPRECIATION> 1,074,494
<TOTAL-ASSETS> 1,978,244
<CURRENT-LIABILITIES> 245,338
<BONDS> 798,038
0
0
<COMMON> 194,595
<OTHER-SE> 563,067
<TOTAL-LIABILITY-AND-EQUITY> 1,978,244
<SALES> 219,322
<TOTAL-REVENUES> 322,455
<CGS> 0
<TOTAL-COSTS> 247,117
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 14,284
<INCOME-PRETAX> 61,054
<INCOME-TAX> 22,691
<INCOME-CONTINUING> 38,363
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 38,363
<EPS-PRIMARY> .67
<EPS-DILUTED> .67
</TABLE>
